All the Supreme Court knew of ‘Jane Roe’ was that she lived in Dallas County, Texas under another name and that she ‘wished to terminate her pregnancy by an abortion performed by a competent, licensed physician, under safe, clinical conditions’. In a notarised statement filed with the court in May 1970, Roe affirmed that she was over 21 and unmarried. She wanted an abortion because of the ‘economic hardship which pregnancy entailed’ and also to avoid the ‘social stigma attached to the bearing of illegitimate children’. Abortion-seeking Texans usually travelled to states with more liberal laws, or to Mexico, but Roe claimed, and there seemed no reason to doubt her, that she couldn’t afford to leave town. She understood that some doctors in Dallas did perform illegal abortions, but these were expensive and often unsafe, and she worried that having one might kill her. In any case, she didn’t want to ‘participate in an act deemed by the State of Texas to be a felony offence’. Texas did permit a single exception – an abortion was legal if it was ‘procured or attempted by medical advice for the purpose of saving the life of the mother’ – but this didn’t apply to Roe. And even if it did, there were no official guidelines for physicians. Could you give an abortion to a woman who was suicidal because of her pregnancy? What if childbirth would shorten her life, but not right away? Better not to risk it. Under the state’s anti-abortion statutes, on the books since 1854, the punishment for performing an illegal abortion was two to five years in prison. If a woman in Texas died because of an illegal abortion, her abortionist could be charged with murder.
The lawyers who tried to uphold the Texas statutes – ostensibly representing the Dallas district attorney, Henry Wade – argued that whoever Roe really was, she didn’t have sufficient ‘standing’ to bring her case to the Supreme Court. The plaintiff had to be someone who would be harmed if the law wasn’t overturned. Given the ‘normal 266-day human gestation period’, and the fact that it had taken more than a year for Roe v. Wade to reach the court, Roe must already have delivered a child, or miscarried, or found a way to have an abortion after all. The court batted this challenge away. ‘Pregnancy often comes more than once to the same woman,’ the majority decided. ‘If man is to survive, it will always be with us.’ Otherwise, Roe hardly appears in the judicial opinion that granted Americans the right to abortion ‘free of interference by the state’. Her anonymity, her everywomanishness, suited the court fine: Roe was just a stand-in. But Norma McCorvey – who would later say that she’d agreed to become Jane Roe in exchange ‘for a piece of pizza and a beer’ – never saw it that way. Estimates vary, but around 600,000 pregnancies are terminated every year in the US. McCorvey would come to think of each one of them as her own doing.
Joshua Prager says he became interested in writing about McCorvey twelve years ago, while learning about the attempts of gay rights activists to bring the issue of marriage equality before the Supreme Court. Since the justices won’t consider hypothetical cases, the activists needed to find real people to file suit, ‘stakeholders’ willing to swear that the outcome would ‘concretely’ affect their lives. Across the country, same-sex couples volunteered. But the activists were haunted by Roe v. Wade: they weren’t going to make the same mistake twice. They were searching for plaintiffs who wouldn’t become embarrassments, who were – is it really possible to tell? – unlikely to fall apart if they became famous. When they spoke to the press, they would radiate kindness, decency and good humour. If it wasn’t too much to ask, they should be the parents (or, even better, the grandparents) you wished you’d had. Above all, they had to believe in the cause. An article Prager read in the New Yorker referred to the plaintiffs in Loving v. Virginia, which overturned bans on interracial marriage, as the beau idéal. The Lovings had said all the right things, then stayed out of the limelight – and stayed married. They even had the perfect name. The few sentences on the more ‘problematic’ McCorvey were enough to excite Prager. He hadn’t realised that Jane Roe had never had an abortion or that there were no reports about the fate of foetus Roe. Prager, a former reporter at the Wall Street Journal, was good at finding things out. He had already tracked down the reclusive heir to the Goodnight Moon fortune and identified the anonymous patron in Joe Gould’s Secret. And he was particularly drawn to ‘people whom historical circumstance burdened with secrets’. His book, The Family Roe, uncovers scores of them. And in so doing, he makes the case that McCorvey was in fact the perfect plaintiff for Roe v. Wade, just not in the way her lawyers would have liked.
At first, McCorvey wouldn’t talk to Prager unless he paid her $1000. Her story was her only asset, and it had supported her, however modestly, for years. Sarah Weddington, the lawyer who argued Roe at the Supreme Court and then parlayed her fame into a political career, had stopped granting interviews (possibly because of illness: she died in 2021). So Prager turned to Linda Coffee, who hardly appears in other histories: she’s barely mentioned in Weddington’s memoir, A Question of Choice, or in documentaries; unlike Weddington, she never delivered a university commencement address or appeared among the feminist luminaries who headline rallies on the Washington Mall. When Prager met Coffee, she had given only a single interview since 1973, and was living in an unheated house in East Texas, reliant on food banks. She had been 26 years old in 1969, when she read about the newly decided People v. Belous: a California gynaecologist had been found guilty of violating his state’s anti-abortion laws (for passing on the details of an abortionist to a pregnant patient), only to have his conviction overturned when the state supreme court ruled that California’s anti-abortion laws were unconstitutionally ‘vague’, in violation of the Fourteenth Amendment. Part of that amendment, which guarantees legal ‘due process’, had been interpreted to mean that laws must be comprehensible to the ‘men of common intelligence’ who have to follow them. In California, as in Texas, abortion was illegal unless it was ‘necessary to preserve … life’, but the court recognised that the meanings of ‘necessary’ and ‘preserve’ weren’t always obvious, and that doctors had been forced to speculate. The court also noted that the statute had been written in 1850, before the advent of modern antibiotics. A ‘great and direct interference with a woman’s constitutional rights’ might once have been ‘warranted by considerations of the woman’s health’, but no longer. The circumstances had flipped: abortions now saved pregnant women from the far more dangerous experience of childbirth.
Coffee told Prager that her ‘mind raced’ on reading the verdict: if California’s abortion laws were unconstitutional, then the Texas laws might not stand up in court either. She thought they were harmful – they ‘held women back’ – as well as illogical: anyone who helped a woman to get an abortion was guilty of a crime, but if a woman performed the abortion on herself, she was in the clear, not even guilty of a misdemeanour. Coffee was a Baptist, but it didn’t occur to her that there might be a conflict between her faith and her feelings about abortion. She had been taught that ‘life begins when breath begins,’ not before. In 1970, 70 per cent of Baptist pastors ‘supported abortion to protect the mental or physical health of the mother’; 90 per cent of Texas Baptists thought their state’s abortion laws were too restrictive. The president of the Southern Evangelical Seminary once explained in the Baptist Press that before Roe v. Wade, as far as his fellow seminarians had been concerned, abortion was a ‘Catholic issue’. Nor had abortion been a partisan cause. Many Democrats, particularly Catholic voters in the north-east, were pro-life. Prominent Republicans, including (for much of their careers) Ronald Reagan and George H.W. Bush, were often pro-choice on principle – they were, after all, meant to be the defenders of individual liberty. Many states would probably have eventually liberalised abortion laws on their own. In 1970, abortion was legal in two, Oregon and California. By the end of that year, Alaska, Hawaii, New York and Washington would all repeal criminal penalties for abortionists (with varying restrictions). Other states seemed to be loosening up – if not making abortion legal outright, then at least allowing exceptions for pregnancies that were the result of rape or incest. Georgia began to allow abortions when a foetus had a ‘defect’ that was ‘grave, permanent and irredeemable’.
But not Texas. As Weddington explains in her memoir, ‘Texas was hopeless’: legislators wouldn’t move abortion bills out of committee. Coffee realised that if the Supreme Court overruled the Texas statutes, the law could change for everyone in the country, immediately. It seemed efficient. She became ‘consumed’ by the idea of filing suit – it thrilled her, unlike her day job, which was drafting bankruptcy petitions. She had been an excellent law student and had clerked for a federal judge, but Texas firms weren’t keen on hiring women. She tried to get work with Henry Wade in the district attorney’s office, but ‘the only job he had for a woman … was collecting child support.’ (She also couldn’t get a charge card in her own name or rent an apartment without a male co-signer.) One of her Sunday school classmates, Henry McCluskey, was attempting to overturn the Texas sodomy statutes, which criminalised sex acts that couldn’t result in pregnancy. Coffee wrote ‘some kind of brief’ for him, arguing that the police who spied on gay men in public toilets were violating constitutional protections of privacy; the court wasn’t fully persuaded, but she thought that some of her arguments could be repurposed to go after the abortion laws. Just a few years before, in Griswold v. Connecticut (1965), the court had overturned a state ban on the sale of contraceptives for use in ‘the sacred precincts of marital bedrooms’. It was the first time that the court had decided that Americans had a constitutional right to ‘marital privacy’, that even though no such phrase appears in the Bill of Rights, a ‘right to privacy’ could be ‘implied’ from the ‘penumbras’ and ‘emanations’ of multiple amendments. Coffee was curious to see how far the court might go: if the justices were willing to overturn laws about condoms, why not laws about abortion? She was confident that she could make a compelling legal argument – she thought that she could almost do it ‘on the basis of common sense’ – but she ‘couldn’t figure out how … to find a pregnant woman who was willing to come forward’ as the plaintiff of record until McCluskey offered to introduce her to one of his clients.
In her memoir I Am Roe (1994), Norma McCorvey wrote that just before she agreed to talk to Coffee, she attempted to get an illegal abortion. She visited a ‘small, low, windowless place with a sign out in front that said DENTIST’:
I was in a nightmare. One that I didn’t really understand – or was afraid to. What I saw first was an old, old wooden doctor’s examining table sitting abandoned in the middle of a big room. The table was dirty. Filthy. So was the whole office. There was dried blood on the floor. And on the examining table. Regular tables and chairs and filing cabinets were scattered on the floor … The place smelled horrible. The odour was overpowering. It was ten times worse than anything I had ever smelled before. I’d never smelled anything like it, but somehow I knew what it was. I got sick to my stomach. I ran outside and threw up in the alley … The next day I called Henry McCluskey and told him to pass on my name.
Years later, McCorvey would admit that, like many of her stories, this had all been made up: she had never visited an illegal abortion clinic, though she had certainly wanted an abortion. After she finally agreed to talk to Prager (for free), he spent hundreds of hours with her – patiently creating a narrative that’s less exciting than McCorvey’s own, and sadder. I think that Prager would agree he never warmed to his subject, whom he refers to as a ‘compulsive liar’, ‘less than pretty’, a ‘borderline personality with a tenth grade education’ who ‘injured nearly all who knew her’ – descriptions that McCorvey (who died in 2017) probably wouldn’t have disputed.
At the start of I Am Roe, McCorvey apologises for being a ‘nuisance’ and ‘embarrassment’ to ‘some in the women’s movement’. She wishes that, like ‘many of the women I admire’, she came across as more ‘gentle’ and ‘sophisticated’ – but then, if she had been more sophisticated, she might not have been so useful. She blames her religious parents (Pentecostals turned Jehovah’s Witnesses) for neglecting to tell her how babies were made. When she became pregnant at seventeen, she was ‘shocked’ – ‘somehow what Woody and I had been doing together didn’t seem to be what was needed to create a whole new life.’ Woody was her husband, but the marriage was over by the time her daughter, Melissa, was born. Although she enjoyed sex with men, she thought of herself as a lesbian, and wasn’t interested in living with a man, or raising children with one. For years she would claim that her own mother had ‘kidnapped’ Melissa, and refused to let her see the child – McCorvey was ashamed that she had begged her mother to take the baby away. She supported herself by working as a cleaner and by running the freak show at the Bluegrass Carnival, sometimes by selling drugs or sex. When she became pregnant for a second time, she asked a nurse if there was a ‘way that they take your baby’. The nurse either misunderstood her or wouldn’t break the law, and referred McCorvey to McCluskey, who arranged for the baby, another girl, to be adopted as soon as she was born. When McCorvey was 21 years old and pregnant for a third time, she went back to him: ‘I didn’t want to give birth to another unwanted child. I didn’t want to have to give up another child. I didn’t want a child to be born with me as a mother.’
When Coffee first met her potential plaintiff, McCorvey wasn’t sure how far she was from giving birth. Coffee thought that she looked ‘really pregnant’ – at least twenty weeks along, too late to get a legal abortion anywhere in the US. Coffee knew that a lawsuit wouldn’t do anything to help McCorvey terminate her pregnancy, but it’s not clear whether McCorvey knew it. Coffee would admit to Prager that McCorvey had ‘maybe’ seemed a ‘little too co-operative’: her only question had been about whether she would have to pay anything (Coffee paid the $30 filing fee). Coffee told Prager she was aware that McCorvey ‘didn’t have a lot of education’, but didn’t worry that she might be taking advantage of her. Since the case would be filed under a pseudonym, almost no one would know McCorvey had been involved. Win or lose, there seemed little reason for her role in the case to affect her life – except that if they won, she might be able to get an abortion for her next unwanted pregnancy. (When Prager asked McCorvey about contraception, she told him: ‘When you’re in a hurry, you’re in a hurry.’)
McCorvey liked to say that she chose the name ‘Jane Roe’ herself, to honour a childhood imaginary friend, but Coffee told Prager that she knew what her plaintiff would be called before she ever met McCorvey; ‘Jane Roe’ was just a common pseudonym for a woman in legal proceedings, as John Roe (sometimes Poe, Doe or Hoe) was for a man. Coffee would probably have continued to work on the case by herself if she hadn’t received a phone call from her old law school classmate Sarah Weddington. They weren’t friends, but Weddington had a question about federal procedure, and knew that Coffee had clerked for a federal judge – Sarah Hughes, who was instrumental in securing Texan women the right to serve on juries, though she’ll always be most famous for swearing in Lyndon Johnson as president on Air Force One after Kennedy’s assassination. Weddington belonged to a network that illegally referred women to doctors willing to perform abortions, and was herself considering bringing a suit in Austin to challenge the state’s anti-abortion laws. Her plaintiffs would be a group of women who weren’t pregnant, but might plausibly want abortions in the future. Coffee persuaded her she’d be making a mistake – the court would almost certainly find that the women didn’t have standing – and said it would be smarter to file in Dallas, not Austin, so there would be a chance of arguing in front of Judge Hughes. She invited Weddington to join her case (in her memoir, Weddington makes it seem like it was the other way around) and took her to a pizza parlour to meet their plaintiff. McCorvey was struck by how little Weddington resembled her idea of a feminist activist – ‘short and blonde and a little plump’, she was a former sorority girl who had led her school’s chapter of the Future Homemakers of America.
When, years later, McCorvey heard Weddington say that part of the reason she had devoted herself to helping women get abortions was that she’d had one herself, in Mexico, while she was a law student, McCorvey felt betrayed – why hadn’t Weddington helped her to get a Mexican abortion too? ‘I thought we were all real clear on what I really wanted,’ she told Prager. She told Coffee and Weddington she’d been raped, but later admitted she’d only said it because she thought it might help her case. The lawyers decided not to mention rape in their briefs: they weren’t sure they believed McCorvey, and they didn’t want the law changed only to permit a rape exception. ‘We wanted a decision that abortion was covered by the right of privacy,’ Weddington wrote. ‘Our principles were not based on how conception occurred.’
In May 1970, Coffee and Weddington represented Jane Roe in front of a panel of three federal judges (including Judge Hughes) against the office of the Dallas district attorney. Henry Wade had prosecuted Jack Ruby for the murder of Lee Harvey Oswald, and was renowned in Texas for his eager pursuit of the death penalty (it was handed down in 29 of his cases by the end of his career). According to his son, he was a ‘closeted liberal’ and personally pro-choice – but he liked to win elections in Dallas. His lawyers told the panel that Jane Roe didn’t have standing to bring a case: the anti-abortion statutes targeted doctors, not the women who went to them. In addition, the state had ‘a right to protect life’, and the ‘right of the child to life is superior to that of a woman’s right to privacy’. On 2 June 1970, McCorvey gave birth to her third child, another girl. And on 17 June, the judicial panel ruled that the Texas statutes were indeed unconstitutional, but stopped short of explicitly ordering Texas officials to stop enforcing them. The people of Dallas expected a little grandstanding from their elected officials: Wade announced that he would appeal the decision to the Supreme Court, and that in the meantime, nothing had changed. Since the panel hadn’t issued an injunction, he would continue to send abortionists to prison. Coffee and Weddington were allowed to cross-appeal, but they didn’t expect anything to come of it. Of the thousands of appeals the Supreme Court received every year, only about 150 were accepted. And even if the court was inclined to hear a case on abortion law, it wouldn’t necessarily be theirs: similar cases were pending in other states too.
In her memoir, McCorvey says that she had a ‘moment or two of pure truth, total clarity’, followed by rage, when she realised that even if she won the lawsuit, it would be too late to get an abortion herself. ‘I was nothing to Sarah and Linda, nothing more than just a name on a piece of paper.’ She thought that they had led her on, ‘let me think that I could get an abortion – and then, when everything was going fine for them, when they had got what they wanted – they just said, “Sorry,” as they told me my world had fallen in.’ McCluskey arranged for her to have another closed adoption. A few days after she gave birth, she attempted suicide.
In May 1971, the Supreme Court announced that it would hear Roe v. Wade in December. What’s clear from Weddington’s memoir and from Prager’s reporting was that Roe had been a grassroots operation up to that point. There wasn’t a larger organisation of lawyers and activists helping Coffee and Weddington plot strategy; they had relied on friends for office space and for help with research and typing. Only when Roe was definitely headed for the Supremes were they ‘flooded’, as Weddington would write in her memoir, with offers of advice and, at last, some money. At least one lawyer tried to take over the case entirely: too much was at stake, he thought, for Roe to be handled by neophytes. In A Question of Choice, Weddington admits (or brags?) that before her work on Roe, her ‘total legal experience consisted of a few uncontested divorces for friends, ten or twelve uncomplicated wills for people with little property, one adoption for relatives, and a few miscellaneous matters’. Coffee stepped back from the case, but Weddington held onto it because, as she would later say, another lawyer wouldn’t have understood the ‘fear of pregnancy or the resentment of the limitations that the law placed on women’ as well as she did; the truth was almost certainly that she wanted her moment in the sun. At 26, she would be among the youngest lawyers ever to argue a case in front of the Supreme Court. The plaintiff has the last word on representation. ‘To solve her problem,’ McCorvey would write, ‘Sarah got in touch with me, for the first time in a long time.’ She gave Weddington permission to keep arguing the case, though she no longer thought much about it. ‘Basically, I was no good. So that meant no good would come out of anything I ever did. The lawsuit had my signature on it – that meant it was doomed.’
In the nationwide speaking tour that would occupy much of the rest of her life – ‘When people ask me where I live, I sometimes answer “Delta”’ – Weddington would describe how on 13 December 1971 she dressed with studied demureness, in pearls, her hair down: feminine, likeable, not a ball-breaker. In those days there was only a men’s lavatory in the Supreme Court lawyers’ lounge, and someone mistook her for a secretary. During oral arguments, her inexperience was obvious: Justice Blackmun thought she barely passed (a ‘C+’). In her memoir, Weddington remembers how difficult she found it to make her points when the justices kept interrupting her with questions. She tried to tell them that when the constitution was adopted, there had been ‘no common law prohibition against abortion’; abortions had been available to American women from the earliest days of the republic. She didn’t argue that particular constitutional amendments guaranteed a right to privacy or to an abortion – she admitted that she was ‘a little reluctant to aspire to wisdom that the court was not in agreement on’ – but suggested that the guarantee of ‘liberty’ in the Fourteenth Amendment might be relevant. And she tried to point out some of the ‘variety of ways’ in which a foetus wasn’t a person under the law: the census doesn’t count pregnant women twice; tax deductions for offspring don’t kick in until after birth; the right of inheritance had always been contingent on being born alive. Her brief was heavy with affidavits from male heads of obstetrics and gynaecology departments. Weddington sensed that the justices would have a ‘special respect’ for them, as fellow professionals. Amicus briefs supporting Roe were also filed by Margaret Mead, a former Miss America, and religious groups, including Episcopalians, Jews and the United Church of Christ.
The lawyer representing Texas began his argument by saying: ‘It’s an old joke, but when a man argues against two beautiful ladies like this, they’re going to have the last word.’ When no one laughed, Weddington thought he became ‘unnerved’. He went on to argue that even if a no longer pregnant Roe did have standing to sue in court (which he didn’t concede), an ‘unborn child’ was a person with constitutional rights ‘from the moment of impregnation’. A woman ‘makes her choice’ to become a mother ‘prior to the time she becomes pregnant’; Texas was entitled to protect the lives of all its citizens. Blackmun found the defence lawyer smoother than Weddington – he gave him a B – but thought that neither lawyer had satisfactorily answered the jurisdictional question the justices had thought they were deciding: if a state law prevented a woman from getting an abortion, could she (or her doctor) sue directly in federal court, or did she have to stay in the state judicial system? One of the revelations in Bob Woodward and Scott Armstrong’s exposé of the court, The Brethren (1979), was that the justices had initially agreed to hear Roe v. Wade without a full bench (two justices had recently retired) because they hadn’t realised what was at stake. Once they did, they scheduled the lawyers to argue the whole case again – in front of all nine justices – the following year. Another reason for the delay was that Blackmun had begun his own independent research project on the history of abortion in America: he wanted more time to think things through.
Blackmun told the oldest of his three daughters that he’d give his ‘eyeteeth’ to write one of the opinions for Roe v. Wade. Decades later, at his memorial service, she would say that he had seen at ‘close range what it was like for a woman alone in the world’. His middle daughter, Sally, got pregnant in 1966, when she was nineteen; she dropped out of university and married her boyfriend, then had a miscarriage, then a divorce. An opinion was also likely to be assigned to Blackmun because of his ‘medical background’, the decade he’d spent as a lawyer for the Mayo Clinic in Minnesota. He often referred to his Mayo years as the happiest of his career: he’d felt like a member of the hospital staff as he listened to doctors present their research, and had observed procedures. Blackmun wasn’t certain that a woman had a right to an abortion, but he considered a doctor’s judgment close to inviolable. He did believe – as he would write – that at some point in a pregnancy, ‘another being becomes involved,’ but he went back and forth on when that might be. His research in the Mayo Clinic’s library persuaded him that until the mid-19th century, an American woman had ‘enjoyed a substantially broader right to terminate a pregnancy than she does in most states today’. In colonial America, ‘restoring the menses’ had been a common enough domestic practice that recipes – listing abortifacient herbs – had often been included in home medical guides. Blackmun would never suggest exactly where in the constitution the right to privacy was located, but he was certain that it was in there somewhere, and that it must be ‘broad enough to encompass a woman’s decision whether or not to terminate her pregnancy’. He didn’t think it would be necessary to ‘resolve the difficult question of when life begins’. He considered the rights of fathers, and of the parents of minors who became pregnant, but so long as the defenders of the Texas laws didn’t refer to them, he decided he wouldn’t either.
Roe v. Wade was reargued on 11 October 1972. The court now included two new Nixon appointees, including Lewis Powell. Nixon had announced that Powell ‘shared’ his ‘judicial philosophy, which is basically a conservative philosophy’. Although Nixon had recently supported increased federal funding for family planning, including abortions – ‘There are times when an abortion is necessary. I know that,’ he said on one of his secret tapes – he had been persuaded in 1971 by his advisers, particularly Pat Buchanan, that by flipping he would persuade a sizeable number of Catholic voters to abandon the Democratic Party. In time for his re-election campaign, Nixon announced that he could no longer ‘square’ abortion ‘on demand’ with ‘my personal belief in the sanctity of human life, including the life of the yet unborn’. He assumed that Powell, a Southerner and military veteran who in private practice had defended Big Tobacco, would toe his new line. But although on gay rights Powell would vote as Nixonishly as court-watchers predicted (while upholding Georgia’s anti-sodomy statutes, Powell told a law clerk ‘I don’t believe I’ve ever met a homosexual’), on abortion, he went the other way. Powell’s father-in-law and two brothers-in-law were all obstetricians: he’d learned from them, and from a messenger who worked for his law firm whose girlfriend had died, what unsafe abortions did to women. Powell praised Blackmun’s draft opinion, which argued that abortion should be legal during the first trimester, but persuaded him to go further, to allow for abortions until the end of the second trimester (about 27 weeks into a pregnancy). In a note to colleagues, Blackmun agreed that there was a ‘practical aspect’ to allowing for later abortions: he had learned that ‘there are many pregnant women, particularly younger girls, who may refuse to face the fact of pregnancy and who, for one reason or another, do not get around to medical consultation until the end of the first trimester is upon them or, indeed, has passed.’
Supreme Court clerks referred to Blackmun’s draft opinion as ‘Harry’s abortion’; they fretted that he was acting more like a legislator than a judge. In a note to colleagues, Blackmun admitted that his emphasis on trimesters was ‘arbitrary’, but that ‘perhaps any other selected point’ would be ‘equally arbitrary’. He wouldn’t tell his daughter Sally what the decision in Roe v. Wade would be, only that she should be in the courthouse on 22 January 1973 to hear it. Weddington said later that when she found out she’d won the case, 7-2, she wanted to telephone Norma McCorvey, but hadn’t been able to track her down; she ‘assumed she had heard or would see press reports’ – Roe was one of the top stories of the day, second only to the news that Lyndon Johnson had died.
Henceforth, through the first trimester, ‘the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient’s pregnancy should be terminated.’ (This wording was the source of frustration to come: feminists complained that Blackmun had protected the ‘woman’s right, with the physician, to get an abortion’, rather than the woman’s right alone.) States would be free to ‘regulate’ abortions during the second trimester, though only to protect ‘maternal health’. Once a foetus had the ‘capability of meaningful life outside the mother’s womb’, which in 1973 was usually not until the end of the second trimester, a state would be permitted ‘to proscribe abortion except where it is necessary … to preserve the life or health of the mother’. In Becoming Justice Blackmun (2005), Linda Greenhouse charts the immediate response to the decision from legal scholars, which ‘ranged from tepid to withering’. An article in the Yale Law Journal argued that the Roe decision was ‘bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be’. Ruth Bader Ginsburg would say that the case had been mismanaged from the start, and that the constitutional arguments should have been based on women’s equality, not privacy. (She also thought Blackmun had gone too far: ‘Doctrinal limbs too swiftly shaped,’ she wrote, ‘may prove unstable.’) Greenhouse suggests that it became immediately ‘acceptable, even fashionable, to express disdain for the opinion even in liberal intellectual circles’. But what mattered was the result. No one really believed that the abortion debate in America had ever been about what was in the constitution.
In her memoir McCorvey wrote that ‘the night I found out Roe had been decided I cried. Eventually I drank myself to sleep.’ She didn’t realise that the judgment had nothing to do with her story about being raped. She was anxious that she would be sent to prison if she were found out, or that the case would be overturned: ‘Would abortion then be illegal again, and would millions of women in America go back to suffering and helplessness? Just because of my telling a lie?’ Rather than retreat, she gave an interview to Good Housekeeping. When asked about the father of the Roe Baby, instead of referring to her ‘hazy if consensual affair with a hustler named Bill’ (whom Prager tracked down), she spoke of ‘footsteps heard on a stretch of unlit blacktop in rural Georgia, of ripped clothing and gravel burns’. Sometimes she would say that her rapist had ‘looked ten feet tall’, at other times that there had been three men. She almost wished she really had been a rape victim; she wanted someone to feel sorry for her and to care for her. She also thought, frankly, that the feminists weren’t giving her enough credit.
By the end of 1973, there had been at least 745,000 legal abortions. They were safer and more affordable (usually under $200) than ever before: one abortionist Prager interviewed described Roe as having ‘disappeared’ the ‘fevers and bleedings and perforations he had witnessed during his medical training’. The day after the Roe decision, the congresswoman Bella Abzug proposed a constitutional amendment that would have barred states from creating new laws restricting abortion access, but it went nowhere; she seemed to be worrying over nothing. As the director of NARAL (the National Association to Repeal Abortion Laws) told her board, ‘the court has spoken, and the case is closed.’ McCorvey began to refer to Roe as ‘my law’; at a march in Washington she felt rebuffed – why wasn’t she being invited to address the crowds? And she was hurt that Weddington ‘barely acknowledged’ her. In 1989, shots were fired into her house and car – the work, McCorvey knew, of a woman she had short-changed on a drug deal, but she told reporters that she’d been targeted because she was Jane Roe. A bullet had entered Justice Blackmun’s house too, and abortionists were being murdered: it was a believable lie, and she was angry that she wasn’t rewarded for telling it. All the women who were now benefiting from the legal abortions she had been denied – didn’t they owe her something? Instead, she kept being fired from jobs answering the phones or filing papers at Texas abortion clinics. ‘She had a name,’ one of her bosses told Prager, ‘but that’s about all she had.’
In August 1995, in a televised interview with ABC News, the ‘woman once known only as Jane Roe’ told Ted Koppel that she was tired of the feminists, who’d never shown her the ‘respect I thought I deserved’. McCorvey was now a member of Operation Rescue, an anti-abortion group with the slogan ‘If you believe abortion is murder, act like it’s murder.’ The pro-life movement, once amorphous, had been united by a single goal since 1973 – overturn Roe. Now Roe was theirs: ‘God has given Norma to us.’ Never again would she be sidelined at a Washington rally. Now when she went to the capital, a whole event would be structured around her, a memorial service featuring a tiny casket representing all the millions of unborn children. ‘We are here to proclaim that Jane Roe is dead and Norma McCorvey lives, in Jesus’s name.’ She apologised for her naivety: ‘I didn’t realise at the time that I would be leading innocent children to a senseless and terrible death.’ She would cry, and say that the first time she met Coffee and Weddington over pizza, she hadn’t even known the meaning of the word ‘abortion’; they’d plied her with so much beer that she hadn’t realised what they were up to. At other times she would admit that she was still angry with Weddington for not helping her to get a Mexican abortion. Even when she went further off script – telling interviewers that she thought that abortion should be legal in the first trimester – it didn’t matter to Operation Rescue; they didn’t just forgive her, they loved her, ‘a miracle’ and ‘vessel of God’. They paid her for appearances and helped her to get a book deal with a Christian publisher, but Prager thinks that it’s not quite right to say that she changed sides just for the money. He writes persuasively that ‘she believed in the right of a woman to choose,’ but that she had ‘never fully shaken the thought that abortion was a sin’ – like most Americans, when polled, she believed both that abortion was a form of murder and that it should be legal. But unlike the pro-choicers, her new friends would run errands for her (sometimes in a truck covered in images of dead foetuses) and listen to her talk on the phone for as long as she wanted. When she was depressed, they set up a ‘care calendar’ for her, to make sure that she was never without meals and companionship. All she had to do in exchange was to repent of her lesbianism (she seems to have tried, for a while) and to let herself be photographed praying on the steps of the Supreme Court or burning copies of the Roe decision. And she was willing to file another lawsuit, McCorvey v. Hill (2003), in which she argued that since her original affidavit for Roe v. Wade had been full of lies, the whole case should be thrown out. The court didn’t agree – too much time had passed – but the attention helped Operation Rescue to raise money. Besides, Roe wasn’t quite what it had been. In Planned Parenthood v. Casey (1992), the Supreme Court had thrown out Blackmun’s trimester system, ruling that ‘even in the earliest stages of pregnancy’ states would be allowed to enact anti-abortion regulations so long as they didn’t place ‘substantial obstacles in the path of a woman seeking an abortion before the foetus attains viability’. When Blackmun read a draft of the opinion, he wrote in the margin: ‘Wow! Pretty extreme!’ It was obvious that the meaning of ‘substantial’ would become too open to interpretation. Impose enough regulations on an abortion clinic, and you could get it to close as surely as if you’d bombed it. Which, of course, pro-lifers sometimes did.
In 2013, Weddington wrote that she had lived long enough to see the protections of Roe ‘vanishing’, piece by piece, like the Cheshire Cat. Already there were abortion ‘deserts’ – states such as Kentucky, Mississippi, West Virginia, Missouri, North Dakota, South Dakota and Wyoming, in which women were often hundreds of miles away from their nearest abortion provider. Weddington feared – she knew it could happen – that the court would eventually overturn Roe and Casey entirely, and the authority to regulate abortions would return completely to the states. By 2022, sixteen states had laws that protected abortion rights. The rest would be able to ban abortions, at any point in a pregnancy, or to define them as homicide. In 2021, Weddington’s Texas passed a ‘trigger law’, to take effect if the Supreme Court overturned Roe. In which case, anyone in Texas ‘who knowingly performs, induces, or attempts an abortion’ commits a second-class felony offence, with a prison term of two to twenty years. When the abortion is successful (‘if an unborn child dies’), it rises to a first-class felony, for which the penalty can be a life sentence. The only exceptions would be to save the life of ‘the female’ or to prevent ‘substantial impairment of a major bodily function’. At least twelve other states have also passed trigger laws.
At the end of her life, interviewed from a nursing home, McCorvey would say she no longer cared about the abortion wars: ‘If a young woman wants to have an abortion – fine. It’s no skin off my ass.’ Her admission that she was no longer pro-life made headlines once again. Just after Trump’s inauguration, two weeks before she died, she said that she knew that he would reshape the Supreme Court to make abortion illegal again: ‘That little Richie Rich is going to get his way.’ But as much as McCorvey had been a prize, Operation Rescue hungered for an even bigger one: Baby Roe. A novel called Jane’s Baby imagined her as extraordinary, the president of the United States, but almost any living woman would do: they could dress her up. For years, the only person who knew what had happened to the daughters McCorvey had given up for adoption was McCluskey, but he was murdered in 1973. McCorvey never tried to find her second daughter: she knew that it was only the third one who was special. She imagined going on the Today show with her, maybe a national speaking tour. With help from the National Enquirer in 1989, she was able to find her – a 19-year-old law secretary called Shelley, living in Washington State. On the phone, McCorvey tried to persuade her to meet on camera. They would make a splash, like the actress Roseanne Barr, who had recently reunited with the daughter she’d given up for adoption. Shelley thought not. On another call, McCorvey demanded that Shelley thank her: ‘Shelley asked why. For not aborting her, answered Norma.’ As if she’d had a choice. Much as it pained her, Shelley told Prager, she thought McCorvey should have had the right to do it.
Listen to Deborah Friedell and Laura Beers discuss Roe v. Wade on the LRB Podcast.
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