Web extra: The lawyer who argued for Roe in Roe v. Wade
Find the 2017 Radio Boston interview with Sarah Weddington, produced by Kathleen McNerney and Meghna Chakrabarti, here.
MEGHNA CHAKRABARTI: The recent leak of Supreme Court Justice Samuel Alito’s draft ruling on the most important case in years has the entire nation preparing for a future where the federal government no longer guarantees a woman’s right to access abortion services.
Because the Supreme Court looks set to overturn Roe v. Wade, the landmark case that legalized abortion in America in 1973. That had me digging through my old interviews. Because five years ago, I sat down for a conversation with Sarah Weddington.
In the 1970s, she was the lawyer who represented Jane Roe at the Supreme Court. She was 26 years old.
SARAH WEDDINGTON [Archival Tape]: We are once again before this Court to ask relief against the continued enforcement of the Texas abortion statute.
CHAKRABARTI: That Texas statute at the time held that all abortions were illegal except those performed to save the life of the woman. Weddington argued that was unconstitutional.
WEDDINGTON [Archival Tape]: We do not ask this court to rule that abortion is good or desirable in any particular situation. We are here to advocate that the decision as to whether or not a particular woman will continue to carry or will terminate a pregnancy is a decision that should be made by that individual. That in fact, she has a constitutional right to make that decision for herself.
CHAKRABARTI: For some interesting reasons you’ll hear about later, oral argument in Roe happened twice. First in December 1971, and then again in October 1972. Then on January 22, 1973, the court issued its opinion. Seven of the justices agreed with Weddington, a decision that legalized abortion across the country.
However, there is every indication now that this June, almost 50 years after Weddington’s victory, the Supreme Court will overturn Roe v. Wade. Sarah Weddington won’t know that. She died last year. December 26th, 2021, in Austin, Texas. She was 76.
I sat down with Sarah Weddington in 2017. Today, we’re offering that conversation to you once again. And I started by asking her what drew her to the Roe case to begin with, because she seemed an unlikely attorney for such a controversial case. Back in the 1970s, a newspaper had described her as, quote, hardly countercultural. Middle class and married, the daughter of a Methodist minister and a person who headed her chapter of the Future Homemakers of America.
WEDDINGTON: Now, I was also the drum major for the Canyon Junior High Band, and then I was the secretary of the freshman class at law school. You know, there were so few women then. When I was at Harvard Law School yesterday, with some of their particularly women students. And the dean, of course, is a female. We were talking about the fact that at that point there were five women in my law school class out of about 150, 250. You know, we were such a small group.
CHAKRABARTI: This was in the 1960s. Mid 1960s?
CHAKRABARTI: There was a lot of change and a lot of thinking about challenging laws restricting reproductive rights in Texas. So tell us the story then of how you eventually met up with Linda Coffee, who was your coach?
WEDDINGTON: She was another woman out of the five who was in my class in law school. And so this group of mostly women, two men, we were talking in the law school lounge one day. And they said, you know, we’re really worried we’re going to get prosecuted as accomplices to the crime of abortion for sending people to various places.
We really think we need to file a lawsuit. And so I said I’d research it and I did. And I came back and we met again. And they said to me, Sarah, what would you charge us to bring a case against this law? And I said, Oh, I’d do it for free. And they said, You are our lawyer.
CHAKRABARTI: Now, in those early days before the case began making its way through the court system, I mean, what was your initial thought about the legal basis on which to challenge abortion restrictions?
WEDDINGTON: There had been one prior case that was Griswold v. Connecticut. It was a case really about contraception, where contraception was illegal. And a woman named Estelle Griswold, who was the director of the New Haven Planned Parenthood, and her doctor, a man named Lee Buxton, had given a contraceptive device, as it’s described in the case, to a married couple.
They were arrested, prosecuted and convicted of being, you know, giving contraception, which was illegal. So they filed suit against that and they won their case based on the 14th Amendment, which was privacy, that a woman has a right of privacy to decide for herself whether to continue or terminate a pregnancy.
And so that was the basic thing we argued. But to tell you the truth, we also argued the first, the fourth, the fifth, the eighth, the ninth and the 14th Amendment. And in the Supreme Court hearing that one of the judges said, in other words, Ms. Weddington, anywhere we’ll find it is okay with you. And I said, yes, sir, but I thought the right of privacy would be the one.
CHAKRABARTI: You know, it’s such a potent argument and obviously it was a convincing one, when the decision, the landmark decision was issued by the Supreme Court in 1973. But as you well know, I mean, there are a lot of conservative legal scholars and anti-abortion activists who to this day insist that there is no right to privacy enumerated explicitly in the Constitution.
WEDDINGTON: Well, and there’s not the word privacy, but when you put together what the people writing the Constitution were trying to do, keep the government out of determining the most vital parts of your life, then there was a right of privacy, and that’s just the words the Supreme Court used to describe it.
CHAKRABARTI: So let’s hear exactly how Sarah Weddington made that argument. This is an extended excerpt of the first time she argued the case at the Supreme Court in 1971. The excerpt is a couple of minutes long, which is longer than we’d usually play. But it’s fascinating to hear how Weddington builds her argument.
That while the right to an abortion may not be explicitly stated in the Constitution, it need not be. Since she argued that the liberties provided by what she called the penumbra of the Constitution as a whole were clear. The exchange begins with Justice Potter Stewart.
POTTER STEWART [Archival Tape]: You told us about the important impact of this law, and made a very eloquent policy argument against it. I trust that you are going to get to provisions of the constitution you rely on. …
WEDDINGTON [Tape]: … Your Honor, in the lower court, as I’m sure you’re aware, the court held that the right to determine whether or not to continue a pregnancy rested upon the Ninth Amendment, which of course reserves those rights not specifically enumerated to the government, to the people. I think it is important to note in a Law Review article recently submitted to the Court and distributed among council by Professor Cyril Means entitled “The Phoenix of Abortional Freedom” that at the time the Constitution was adopted, there was no common law prohibition against abortions.
That they were available to the women of this country. Certainly under the Griswold decision, it appears that the members of the court in that case were obviously divided as to the specific constitutional framework of the right which they failed to exist in the Griswold decision. I’m a little reluctant to [assign] to a wisdom that the court was not in agreement on.
I do feel that it is that the Ninth Amendment is an appropriate place for the freedom to rest. I think the 14th Amendment is equally an appropriate place under the rights of persons to life, liberty and the pursuit of happiness, I think. And as far as liberty is meaningful that liberty for these women would mean liberty from being forced to continue the unwanted pregnancy. …
CHAKRABARTI: Sarah Weddington in oral argument in 1971. In our 2017 interview, Weddington went on to tell me that the rights of women weren’t the justices only concern. The High Court also took into consideration the rights of physicians who treated women who sought abortions.
WEDDINGTON: Blackmun was the person who wrote the opinion. He had been the medical, well, the legal counsel for Mayo Clinic before he went on the bench. And so he was particularly concerned about doctors, the impact of these laws on doctors. And then doctors talked to him at Mayo Clinic about the tragedies that happened because of the laws, because laws against abortion don’t end the abortion or keep them from happening.
They just make them much more dangerous. Parkland Hospital in Dallas is a very famous trauma hospital. That’s where John F. Kennedy was taken when he was shot. And that hospital had a ward called the IOB ward, Infected Obstetrics. And it was basically for women who had done self abortion, who had had illegal abortion, sometimes by people who had no skill and ended up really perforating and all kinds of problems.
And so a lot of the doctors, almost all of them in that period who were in law school, ended up if they were in Dallas, working in the IOB ward. So they spent a lot of time trying to save their fertility, trying to save the lives of women who were there because of abortion.
CHAKRABARTI: Sarah Weddington’s Texas roots ran deep. Clearly, the constitutionality of Texas law was at question in Roe v. Wade. But when you hear the entirety of the oral arguments in the 1970s, you also hear how Texas culture comes into play right off the bat. When Chief Justice Warren Burger introduced the attorney defending Texas law. The state’s assistant attorney general, Jay Floyd.
Floyd spent considerable time arguing that Jane Roe did not have the standing to bring the case to court, because as the case worked its way from Texas to Washington, Jane Roe no longer needed an abortion. She had given birth and put the baby up for adoption. Justice Potter Stewart, though, asked Floyd, what about other Texas women?
POTTER STEWART [Archival Tape]: What procedure would you suggest for any pregnant female in the state of Texas ever to get any judicial consideration of this constitutional claim?
JAY FLOYD [Tape]: Your Honor, let me answer your question with a statement, if I may, and I do not believe it can be done. There are situations in which a course of record knows no remedy is provided. I think she made her choice prior to the time she becomes pregnant. That is the time of the choice. It’s like more or less well, the first three or four years of her life, we don’t remember anything. But once a child is born, a woman no longer has a choice. And I think pregnancy then terminates that choice.
STEWART [Tape]: Maybe she makes a choice when she decides to live in Texas.
CHAKRABARTI: I want to talk with you in more detail about the legal path that you took to arguing Roe in the Supreme Court. But let me just step aside here for a second and ask about your own personal experience. Because in 1992, you wrote a memoir in which for the first time, I think you made public that you have direct experience with this question of of abortion.
CHAKRABARTI: Can you tell us that story?
WEDDINGTON: Sure. In the 60s, while I was in law school, I was dating a man, Ron Weddington, and became pregnant. And so I had to finish law school. I had to put him through law school. I had lots to do, and just could not stop to have a pregnancy at that point.
So, Ron asked somebody who knew somebody who knew a name in Mexico, I remember it was $400 I had to give him. And we drove to Mexico, found this office. I can still remember thinking, Oh, I hope I don’t die. And even more than that, I hope no one ever finds out about this. You know, I look back now, it was so scary at the time, but I was back and at work and in school Monday morning.
CHAKRABARTI: Even with the cushion of many decades, it still sounds terrifying. I mean, having done it sounds it does sound frightening to me. I mean, to cross the border and put your life and health in the hands of someone you never even met.
WEDDINGTON: But you think about so many women that have had terrible experiences. I was one of the lucky ones because I had the money.
CHAKRABARTI: Well, how much of the fact that even though you say you were one of the lucky ones and you had the money, you still had to go to extraordinary means to get this procedure. I mean, how much of your own personal experience helped drive you to, you know, wanting to pursue Roe the way you and Linda Coffee did all the way to the Supreme Court?
WEDDINGTON: Well, certainly part of it, because I didn’t want anybody else to ever have to go through that.
CHAKRABARTI: Now, you were 26 years old when you presented your oral argument before the United States Supreme Court. That fact, in fact, in itself is quite remarkable to me.
WEDDINGTON: I think so, too. And now I look back, I think, oh, my gosh. But it’s interesting because they still think around the Supreme Court that I was the youngest person ever to argue in the Supreme Court, man or woman.
CHAKRABARTI: And I mean, also, we should note at that time, all nine justices were men.
WEDDINGTON: Oh, yeah. And there were seven the first time. Then the second time we argued it was nine men.
CHAKRABARTI: And why did it have to go back for that second time?
WEDDINGTON: Well, the first time we argued, there were only seven justices and there were a number of the judges who felt they should hold it until there were nine judges, because it was such an important and controversial case that it would be better to have the involvement of nine judges.
CHAKRABARTI: Well, we actually have some of the audio from the oral arguments that you gave before the Supreme Court. Again, the oral argument happened in 1972. The decision came out in 1973. So here’s a little excerpt. This is where Justice Harry Blackmun is questioning you over what constitutes the rights of a fetus. Here we go.
SARAH WEDDINGTON [Tape]: But here we have a person, the woman entitled to fundamental constitutional rights as opposed to the fetus prior to birth, where there was no establishment of any kind of federal constitutional rights.
HARRY BLACKMUN [Tape]: Well, do I get from this, then, that your case depends primarily on the proposition of the fetus has no constitutional rights?
WEDINGTON [Tape]: It depends on saying that the woman has a fundamental constitutional right and that the state has not proved any compelling interest for regulation in the area. Even if the court at some point determined the fetus to be entitled to constitutional protection, you would still get back into the weighing of one life against another.
CHAKRABARTI: Help me understand. How did you feel when you’re standing before those nine those nine justices and you were making the oral argument? I mean, this sounds so silly me asking you this, but I got to do it anyway. I mean, were you nervous?
WEDDINGTON: Yes. … And part of it was because the outcome of that case was so important, it was going to affect the lives of countless women and families across this country for years. And the only thing is, if you had said to me that day, you’re still going to be talking about this in 44 plus years, I wouldn’t have believed that.
CHAKRABARTI: When you found out that the case had been decided in your favor, it was 7-2. Right?
WEDDINGTON: Yes. Because then we had nine judges and I had run for the legislature in Austin, Texas, because I didn’t know if I was winning or losing the case. So we thought, well, if we don’t win in the Supreme Court, at least you would be in the legislature and you could introduce legislation to make abortion legal in Texas. And we think we can get the votes to do it.
CHAKRABARTI: And when you found out that —
WEDDINGTON I was in the legislature.
CHAKRABARTI: Your reaction?
WEDDINGTON: Well, first the phone rang and an assistant answered it and it was a reporter from The New York Times. And that reporter said, Does Ms. Weddington have a comment today about Roe v. Wade? The assistant who answered the phone said, should she? And the reporter said it was decided today. And the assistant said, how was it decided? And the reporter said she won it 7-2.
And that was so exciting, except just knowing I won, but not knowing what the opinion said, what the grounds were. I couldn’t really talk to the press much because I just said, Oh, I’m so excited. But on what basis was this? So I called a friend in Washington and said, Go to the court, get a copy of the opinion, read it, call me back, tell me what it says. And she did. So then the next day, I started making comments.
CHAKRABARTI: Now, Sarah Weddington, of course, you know that Norma McCorvey, who was Jane Roe in Roe v. Wade, years after the case was decided, she underwent a total transformation in her view of abortion, and she ended her life being totally opposed to all abortions. That said, I wanted to ask you about your relationship with her during the time of the case.
Because in 1994, Norma McCorvey had this very interesting, powerful quotation in The New York Times. She was describing how in one of the first meetings she had with you in the early days of Roe v. Wade, that you had met her in a pizza parlor and she was telling you that she desperately needed an abortion. Then she told The New York Times, quote, She needed me to be pregnant for her case. I set Sarah Weddington up on a pedestal like a rose petal. But when it came my turn, well, Sarah saw these cuts on my wrists, my swollen eyes from crying, the miserable person sitting across from her. And she knew she had a patsy.
Well, she goes on and says she knew I wouldn’t go outside the realm of her and Linda. I was too scared. It was one of the most hideous times of my life. So I wonder what your reaction is to that, that, you know, Norma McCorvey says that she was your patsy?
WEDDINGTON: No, I really respected her for a long time because I had explained to her that pregnancies didn’t take as long as cases did. And we would try to do the case as fast as we could and get a decision. But it was unlikely we would get it in time for her to have an abortion.
And so we were very careful to explain those things. But the fact that she seemed to have thought now that I should tell her where an abortion was, which was illegal, and probably pay for it, because she didn’t have any money. No, I’m not going to tell my clients to go do illegal things.
CHAKRABARTI: You know, Sarah Weddington, one of the reasons why I just wanted to to touch on Norma McCorvey’s own transformation regarding her view on abortion is I think it’s sort of emblematic on how unsettled the nation as a whole still feels. I mean, Roe happened. It’s still legal, but obviously abortion is one of the most controversial issues in the United States today.
I mean, we were looking at state by state statistics and found that some 22 states right now in the United States have six or more abortion restrictions on the books. So I’m wondering, I mean, regardless of if another case makes it all the way to the Supreme Court that challenges the constitutionality of Roe itself, it seems as if at the state level, it may not even matter, because there’s been a very successful effort to make abortion access harder and harder. Does that concern you?
WEDDINGTON: Oh, yes. You have a reduced number of doctors who are willing to help women who are in need of reproductive rights issues and abortion. And the more restrictions that are passed, the harder it is for them. In Texas, a lot of those restrictions have been passed in recent years. … For a while they were half the number of abortion clinics that there had been before those laws passed.
Now there are even fewer. And so you’re making it where women have to travel, sometimes across the state, sometimes across state lines. And there was one time when Trump was being interviewed and the interviewer said, Well, what if a woman has to go across state lines. And he said, Well, she just has to go across state lines. But that’s someone talking who I think has a helicopter of his own, and a plane of his own, and a big retinue of cars and ways to go and the money. A lot of women don’t have that.
CHAKRABARTI: Are you concerned that under a Trump administration, if we get, you know, more than just this one new Supreme Court seat, if we get some more substantial change in the court, that Roe could get overturned?
WEDDINGTON: I’m worried about that. … And partly because Ruth Bader Ginsburg, who’s one of the advocates for women being able to make their own decisions, is 83. There are another couple of the judges who are late seventies. One judge I’m concerned about, but not frantic about. Whereas if you ended up with several new judges, then that really concerns me. Because if you look at who would be appointing them, who would be confirming them, we could have a situation where we might not be able to keep a majority.
CHAKRABARTI: Now, my final question to you. I mean, we’ve talked a lot about the legal arguments you made in front of the Supreme Court. But I think one of the reasons, maybe the reason why abortion remains such a contentious issue in the United States is that people have profound moral questions about it. So for those folks listening who currently believe that abortion is murder, how do you respond when people say that?
WEDDINGTON: Well, first, I think it’s a question of who gets to make the decision. Because if you again, like I said in the oral argument, if you look at the Constitution, and even the Bible talks about when the first breath is taken, not when conception occurs. So I respect that there are some people who have that, you know, once conception occurs, that’s it. But I still think it comes down to who gets to make that decision. And I just don’t think it could be the government.
CHAKRABARTI: My conversation with Texas attorney Sarah Weddington from 2017. Weddington died last year in December of 2021.
Sarah Weddington, Texas attorney who successfully argued Roe v. Wade before the U.S. Supreme Court. Former Texas state representative and founder of The Weddington Center.
This article was originally published on WBUR.org.
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