Sarah Weddington and the Supreme Court Case of the Century

The woman behind Roe is still fighting for women's rights, almost 40 years after revolutionizing the United States

Published in 2007 Texas Super Lawyers — October 2007

Few people ever throw a rock into the river of history and get to see its ripples continue to spread for 34 years.

Sarah Weddington has.

In 1971, at the age of 26, Weddington was a newly minted attorney with just one adoption, a few wills and a couple of uncontested divorces behind her. Then she waded into what has become one of the most contentious social issues of our time.

A local women's group in Austin-an outgrowth of graduate students, including many women who wrote at the time for the local underground paper-tapped Weddington to file a lawsuit that she would eventually argue before the Supreme Court. The case was Roe v. Wade, a decision with a social impact that has reverberated violently throughout courtrooms, political halls and dinner party conversations ever since.

Weddington's experience led to a lifetime of work on behalf of women. After arguing Roe in 1971, she won three terms in the Texas Legislature, and eventually joined the Carter White House as assistant to the president.

More recently, Weddington has concentrated on teaching, writing and lecturing around the world, focusing in particular on women's issues and leadership. She speaks glowingly about her students at the University of Texas-Austin, many of whom frequently stop by her office to seek her advice.

Though she regularly travels across the nation and the world, she has remained a proud Texan.

"Texans tend to be so polite that when I'm driving and someone pulls in front of me, I'll think, ‘You're not from Texas,'" she says. "There is a real sense of Texas pride that I feel from being born, raised and always living in Texas. And my burial place is right over at the state cemetery. There's been a lot of speculation about the many really strong women who have come out of Texas, and I think it is partially that you had to be strong to accomplish things."

Today Weddington, 62, is in a period of reflection-what she calls a professional sidestep, as she begins to consider the width and breadth of a career that has spanned the globe. She is a six-year survivor of breast cancer, a disease that claimed her sister, and recently took her dear friend, writer and columnist Molly Ivins. Another friend and her one-time administrative assistant, former Texas Gov. Ann Richards, also passed away from cancer late last year. Weddington laments their passing, and you get a sense that she is looking at both her present and future with their loss in mind.

To date, she has written one book, A Question of Choice, but the roughly piled stacks of memorabilia that line her two-story Austin office are grist for a planned second effort. Her office is undeniably overstuffed-a bit like a grandmother's home-but her knick-knacks and sprawling memorabilia are certainly historic. Artwork and manuscripts jostle for space in the rooms, and awards are squashed together on every unoccupied flat surface. Photos in mismatched frames line a center hall, capturing Weddington with former presidents Carter and Clinton, and with the Queen of England.

She talks about her career with a sense of accomplishment, and it's evident that she has a sense of her place in history, although she wouldn't describe it as such. She evinces a genteel sense of what's "appropriate"-a word she uses often-that seems to proscribe that sort of pride. She has arrived for a meeting in a casual purple suit, dangling her shoes from one hand, and assures her visitor that "I'll put them on when we talk."

Still, from the framed goose feather quill directly inside her front door-a token given to attorneys who argue before the Supreme Court-to the 93 scrapbooks of memorabilia she has already compiled, it's evident that Weddington is beginning to consider what a lifetime in the law has given her.

Weddington's role as a strong feminist voice over the past three decades started in an unlikely fashion. She was born in Abilene, where her father was a Methodist minister, with service to others being a central part of his creed. (Both of her parents would later be supportive of her work on Roe.)

As a high school sophomore, Weddington served as president of her local branch of the Future Homemakers of America.

"That was one of the few things that a woman could be president of, so I was," she says matter-of-factly. "I say now that it was there that I learned the lessons of leadership, not the lessons of cooking. That and in being a drum major in the junior high band, and being president of the Methodist Youth Fellowship. I really started learning about leadership through those organizations."

She attended McMurry College, a small liberal arts school in Abilene. After graduating, she spent a spring session in Austin as a clerk/typist for the legislature. "In retrospect, I'm so glad I did that, because I lost my awe of the people who run for office," she says. "You'd watch those legislators on the floor and think, ‘I could do that!' and hopefully, I'd do it better.

"I think if you look back, I got involved with women's issues in a broader sense because of experiences I'd had-playing half-court basketball when I thought women should be able to run full court. I couldn't get a credit card, and I thought women should be able to get credit cards without a husband's signature. I ended up going to law school-but with really only my parents encouraging me. The dean at my college said, ‘No woman from this college has ever gone to law school; it would be too tough.'"
Despite that, she enrolled at the UT School of Law, one of 40 women in a school of 1,600. She excelled at her studies, but by 1967, in her last year of school, Weddington faced an unplanned pregnancy. She and her partner, Ron, decided that terminating the pregnancy was their best option at that stage of their lives. (They married the following year, and divorced in 1974.)

"I was going to put him through law school [after I finished]," she says. "We ended up deciding that abortion was the best route for us and he went with me to Mexico."
At that time, Texas had a law that outlawed abortion, except to save the life of the woman. Certain other states had more permissive laws. Abortion was legal in other states, including New York and California (where, interestingly, then-governor Ronald Reagan signed the abortion law into effect).

Weddington's experience was better than that of many other women because the clinic she and her future husband traveled to was clean, and the doctor professional. Other women were not as lucky.

Women in states with repressive abortion statutes, or women with few resources to travel often endured dangerous "back alley" abortions, or attempted self-abortion.
"At that time, there were wards called IOB, infected obstetrics wards, in many public hospitals," says Weddington, noting that doctors and residents were very familiar with the after-effects of unsafe abortions. When Weddington filed Roe, she included affidavits from three heads of obstetrics and gynecology at various public medical schools. "They, with their residents and interns, were the ones having to deal with women who had tried self-abortion, or who had undergone an illegal abortion. [The Court] got a lot of the descriptions of what it was like when abortion was illegal and what happened."

But that would come later.

First, Weddington, now graduated, needed a job, but she received no offers from firms. She finally found work with a former professor drafting what would become the Code of Professional Responsibility for the American Bar Association.

During this time, frustrated with her job situation, she became more involved with the women's movement through a women's consciousness-raising group, which met periodically.

The group had begun to informally counsel pregnant women seeking an abortion as to where they could go for safe care, but they weren't sure if what they were doing was legal.

"That group came to me and said, ‘Look, we've been gathering information. Could we tell women about the good places to go or would we be prosecuted as accomplices?' I said, ‘I'll go to the law library and look it up.' If they had said to me, ‘Would you try a U.S. Supreme Court case?,' I would have said no way can I do that.'"

But in fact, she could.

As she researched the facts, Weddington and her former classmate Linda Coffee put together a class action suit on behalf of a pregnant woman named "Jane Roe," designed to test the constitutionality of the Texas law before a federal three-judge panel. The judges did rule that there was a constitutional right to privacy under the Ninth Amendment, but the court did not order the Dallas County district attorney, Henry Wade, to stop prosecuting doctors. When he announced that he intended to continue prosecuting, Weddington and Coffee appealed directly to the Supreme Court, which agreed to hear Roe.

The case was initially argued in the fall of 1971.
Weddington, the minister's daughter, went into court backed by a number of supporters who filed briefs on behalf of the case, including a number of religious organizations.

"If you look back, I knew that there would be representatives of the Catholic church who would have briefs that would be very opposed to Roe," says Weddington of the carefully planned strategy. "And yet I knew that there were a lot of religious leaders who were saying, ‘It's not the government's business. It should be a matter between women and their own moral and spiritual counselors.'

"We had a brief that included most of the Jewish groups, Unitarians, Presbyterians, and so on. We did it partially to say, ‘There's not one religious authority, one religious position on this.'"

Weddington's mother attended the hearing, and her father remained supportive.
"You know, I'd have to say [my parents'] predominant emotion was, [they] wanted to be there and proud of their daughter ... but their worry was that there were people who felt so violently the other way that they worried for my safety. And they worried for the targeting that sometimes happens."

While awaiting the opinion, Weddington returned to Texas and ran for and won a house seat in the legislature, where she attempted to also change Texas' abortion laws legislatively.

"I had at one point thought, ‘Well, if I can't do it through the judicial process, then I'll do it through the political process." She was the first woman ever elected from Austin, and she faced some skepticism because of her gender.

"I didn't have to be a lawyer to be in the legislature, but I think being a lawyer made me more credible as a candidate," she says. "People were so used to lawyers being legislators that while I think some people were uncomfortable with me being a woman, they felt the lawyer part superseded that."

In an unusual move, the Court then reset the case-in effect, asking Weddington to return to argue Roe again in the fall of 1972.

"There are several people who wrote at that time about why it was called back," says Weddington. "There were three theories: One was that Nixon was running for his second term and he did not want what was called the ‘Nixon court' deciding the case, especially if it was going to be against his position ... in the midst of the election. The second rumor was that when I first argued it, there were only seven judges, and they thought it was important enough that there should be nine. And the third was that Blackmun, who was writing the opinion, wanted more time."

The opinion for Roe was finally announced in 1973, the day after Nixon was inaugurated for his second term.

"What you do is you put in everything you think the Court might respond to," Weddington says now of her plan for the case. "We mentioned the First, the Fourth, the Fifth, the Eighth, the Ninth and the 14th Amendments. In the hearing of the case, one of the justices said to me, ‘Well, then, anywhere we'll find it is okay with you?' And I said, ‘Yes, sir, but I think it's the 14th. The 14th is where the Court had gone in Griswold v. Connecticut.'" (That case addressed a law that made the use of contraceptives illegal.)

"That's why I think the Court's [final] opinion says, ‘Whether this right is in the 14th, as we think it is, or in the Ninth, as the lower court found, there is a right [to privacy.]'"
One interesting side note to the opinion written by Justice Harry Blackmun lies in his dictum. It was there that Blackmun, former counsel for the Mayo Clinic, suggested a trimester approach to regulation-in effect, dividing a woman's pregnancy into three stages.

"It was a total surprise to me when I saw that in the opinion," says Weddington. "It was very unusual [to] read an opinion in a case you have argued and read something that you've never heard of.

"A lot of the writings since then say that he was doing that to try to suggest that there was something that the states could pass that would pass constitutional muster. ... I've heard people speculate-and we know there were two dissents on the Court-that he was trying to find a way to have a maximum number before the opinion. I think the dictum was for the benefit maybe of [Chief Justice] Burger or other judges, but Burger is the one I've heard the most speculation about. Burger was very reluctant to just have an opinion that said ‘it's a right of privacy and the woman gets to make the decision.' The dictum was a way to soften that."

An almost immediate backlash began in parts of the legal community over Roe.
In the book Becoming Justice Blackmun, Pulitzer Prize winner Linda Greenhouse writes, "The academic response to Roe, meanwhile, ranged from tepid to withering. Within a few months of the decision, the Yale Law Journal published a scathing critique by John Hart Ely, a former law clerk to Chief Justice Earl Warren and a rising star in legal academia. In the article, "The Wages of Crying Wolf: A Comment on Roe v. Wade," Ely asserted that ‘Roe lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine.'"

Asked for her response to this, Weddington's tone is measured: "Well, I don't know the writer ... but I think if you look at Griswold 1965-you had a statute that said basically, you cannot use contraception. ...

"So [the Court had] just been through the contraception cases, and no one argues that the word contraception is in the Constitution. The Griswold case was the first to coalesce those theories as to the right of privacy. I felt that was the strongest argument I had. So yeah, [Ely] was a critic of the opinion," she says dryly.

In later years, Weddington occasionally crossed paths with Blackmun, but she never asked him about the opinion.

"Our relationship was professional," she says. "I just always felt that [asking him about it] was kind of inappropriate because there's never been a time since then that there haven't been issues percolating that might be before the Court. I've also known Ruth Bader Ginsburg for years, and helped her get her appointment, but I never discussed Roe v. Wade with her. I saw Justice Stevens at an American Bar Association meeting a year, year and a half ago, and spoke with him, but I didn't talk to him about this. I saw Justice Breyer at a Carter event, and he sat right behind me, so again, we visited but we didn't discuss Roe v. Wade because I think that's inappropriate."

After all these years, have Weddington's feelings about the abortion debate changed?
"Nope, not really," she says with a shrug. "The basics [still are] who gets to make the decision? And I still don't think it ought to be the government. I think people of my generation saw the results when the government got to make the decisions, and they were bad enough that we really worked hard to change that."

As the abortion debate has heated in the years since the decision, does Weddington ever face hostile crowds or angry opponents?

"Yeah, it tends to be not so much here in Austin as when you're out being a guest at an event of some kind not related to the abortion issue. You do sometimes get people who are very ..." and she trails off without finishing her thought.

Given that level of sometimes-angry discourse, if she had it to do again, would she?
"There are those moments when you get tired of it," she concedes, "but on the other hand, it is what gave me a chance to make a difference for a whole lot of people and use my legal skills for something I really believe very deeply in. You take the good with the bad.

"I am so glad that I became a lawyer because there is nothing else that would have given me this range of opportunities and options. There's nothing else where I could have left the mark that I have. And that's what it comes down to, ‘what do you want the law to be?' People might say, ‘Well, I wish people wouldn't get pregnant unless they are willing to carry the pregnancy to term'-but there are still a lot of people who think it ought to be an individual decision."

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