Law: The Wind Beneath My Wing
One Woman's Journey to Effectuate Change As an Attorney
Lecture by Sarah Weddington, J.D. October 16, 2002 Reprinted with Permission, Thomas M. Cooley Law Review, 20 TM. COOLEY L. REV 1 (2003)Thank you for the opportunity to share some of my thoughts and experiences as an attorney. I am delighted to be here. I consider it a special privilege to share with those of you who are somewhat less experienced in the law than I am the work that I've been involved in and the ways in which the skills of a lawyer have enriched my life. I believe that law is a very important aspect of our society, and I believe that your mastery of the competencies of a lawyer will give you expanded options.
No one looking at a group of students like you can pick out the ones who will have a lasting impact on legal principles or on society. Nor can you see your own futures. I believe each of you is capable of impact. I am reminded of this when I think about my own law school colleagues. In 1965, I entered The University of Texas School of Law in Austin, Texas. If someone had looked at the group of entering students that was part of and had tried to guess which of us would try a United States Supreme Court case, nobody would have guessed that it would be me. Nor would I have guessed that it would be me. A primary reason was that I was female, and it was a time when women in the legal field were so few as to be curiosities. For example, there were only five women in my entering class. Now, most law schools have a little below or a little above fifty percent women students. In spite of the skeptics of 1965, women are being integrated into the profession.
The legal skills that you are learning will greatly expand your personal and professional options. I am so glad that I became a lawyer. My knowledge of law has allowed me to be involved in a variety of positions and issues.
While visiting with students here before this presentation, it became obvious that students were curious about my career path and particularly about various aspects of Roe v. Wade. Therefore, I want to mold my remarks to respond to that student interest. First, I will direct my remarks to my career path and why I call law "the wind beneath my wings." Second, I will answer questions students were asking about the case for which I'm probably known best, Roe v. Wade. And third, I want to encourage you to be of good cheer when you have doubts about whether the rigors of law school are worth the struggle and when the road ahead seems long and steep.
My career path was never one planned or predicted, yet it is one that has been enormously satisfying. Recently, I was introduced as being "historic." I don't think of myself that way, but I can understand why those words were used. TIME Magazine will soon publish a special issue featuring 80 Days That Changed the World. January 22, 1973, the date the decision in Roe v. Wade was handed down, is the selected date for me. Yet my career has also included a number of other venues and aspects. I was particularly conscious of that as I was constructing my personal website. Looking back at my law school years, I could never have guessed the paths that the law would open for me. Truly, for me the law has been "the wind beneath my wings." It has opened numerous avenues and options that started by simply helping a professor of mine.
Ву way of background, I am the daughter of a Methodist Minister and his homemaker wife and grew up in small, rural, Texas towns. Years ago I heard the following saying: "To be a leader, you must be comfortable feeling different." Like other children of preachers I've talked to, I always felt different. That made it easier for me to strike out in directions that were unusual for a woman. I've wondered why I've always had such a passionate interest in justice and how things "ought to be." I think it was in part because of my father's emphasis on what he called Christian social responsibility and his emphasis on working to improve the world for others.
I started college at a time when the "common wisdom" was that the only appropriate career for a woman was essentially a teacher, nurse, or secretary. My initial decision was to become a teacher. I have my English and speech secondary education degree. I tried so hard to make eighth graders love the English classics such as Beowulf, but found the students often were more interested in other subjects. I have the greatest respect for eighth grade teachers. To explore other paths, I decided to go to graduate school. I was uncertain about what I could do with a Doctorate in English. I didn't have enough chemistry to go to medical school. Law school was open to students who had very good grades regardless of their particular degree. So I focused on law school.
As I was talking to people in my rural Texas town about possible options, and no one knew a woman attorney. I knew only one male attorney, a member of my father's church. Seeking information and guidance, I made an appointment to talk to the Dean of the small, Methodist-affiliated college in Abilene, Texas, where I was a student. I explained that I was thinking of going to law school. His response was, "You can't." I asked, "Why not? I have very good grades." He told me that no woman from the college has ever gone to law school and that it would be too tough. As you might guess, that was the very moment decided I was going to law school.
To the extent that it is possible for anyone to love law school, I did. The other students were more varied and intellectual than my undergraduate colleagues. The subjects were interesting and challenging. As graduation approached, I started applying for jobs. When people had asked during my law school years what I planned to do, my response was that I wanted to be a general practitioner in some small Texas town. As I discovered the difficulty of securing a job offer, I expanded the type of jobs that I would be interested in.
Women in my law class commiserated about our lack of job offers. Additionally, we took umbrage at the fact that firms were paying for male students to fly to various cities for interviews, but they did not offer the same courtesy to female students. Eventually, Betty Brown, the head of University of Texas law school's placement office, essentially told the law firms that she wouldn't let them use the law school facilities to interview students unless they provided transportation for both the men and the women invited to a firm for follow-up interviews after initial interviews at the school.
As I remember a conversation several years ago with Ms. Brown, It turned out to be a "break-through." I was the first woman from my law school to have her way paid to an out-of-town interview. A firm paid my travel expenses from Austin to Dallas. The distance wasn't far, but the change in law firm policies was tremendous. However, I never did get an offer from that or any other firm. In fact, at that Dallas firm, the senior partner in charge of the interview asked questions like, "Lawyers often have to work late but women have to be home to cook dinner. How could you do both?" He made comments like, "To train a young lawyer we have to be able to cuss him out, but we couldn't cuss you—you're a woman. How would we ever train you?" Eventually, the firm explained that other candidates were better suited to their needs.
The job offer I finally secured was one working for my evidence professor, John Sutton, Jr., a man who later served as Dean of the University of Texas School of Law. Professor Sutton was the reporter for an American Bar Foundation committee which was rewriting the Canons of Ethics. Its work product was the Code of Professional Responsibility which was later adopted by the American Bar Association and many of the state bar associations. I was hired to be his assistant on that project. My duties included extensive research and drafting; the opportunities included traveling to many key American cities and working with some of the most outstanding lawyers of the time. Obviously, my legal training was key to my securing that opportunity.
During the time I was working on that project, a group of women, who were primarily graduate students at the University of Texas, approached me and asked for legal help. The students were part of a volunteer counseling effort to provide information about how to prevent pregnancy. But, they explained, some of the women who came to them were already pregnant and wanted information about abortion. Texas law made abortion illegal except to save the life of a woman. The students had gathered information about legal places for abortion, in states such as California and New York, and they had gathered information about the best and the worst places for illegal abortion in places like Texas and Mexico. Their query essentially was, "May we tell women the good places to go, or will we be prosecuted as accomplices to abortion? What would happen if we told reporters for the campus radio or newspaper about the information we've collected?"
I'll stop here for a moment to finish outlining the many opportunities that legal skills have made possible for me. I'll return to the background of Roe in a few moments. While working on Roe, I obviously did not know whether the case would be won or lost. In 1971, a group of women in Austin felt strongly that several pieces of legislation favorable to women needed to be passed by the Texas legislature. But our results were nonexistent. We decided that the only way for women's issues to be treated seriously was for women to be on the floor of the legislature, and the only way to achieve that would be for women to learn how to run campaigns for other women and to be the candidates.
A particular scandal in Texas politics provided an opening for new people to run and hopefully win. This group of women decided that I should be the candidate and they would be the campaign organization. If I won, I would be the first woman from Austin/Travis County to serve in the state legislature, and we could try to pass several legislative measures. Victory was ours on election night, November 1972. I did not have to have a law degree in order to run, but law had been a traditional route for male elected officials. believe the fact that I had a law degree was significant in giving my candidacy credibility. The skills of a lawyer were immensely useful in being an effective legislator.
The 1973 session of the Texas legislature contained more women than ever before. In the House there were five women among the 150 members. Nonetheless, those five, with support from various male members, passed a number of significant reforms regarding women's issues. An equal credit bill was passed. Another successful bill prevented the firing of public school teachers because of pregnancy. A rape reform measure was passed. Prior to its passage, for example, a woman had to prove that she had resisted to the maximum extent possible despite the fact that experts recommended against such measures, fearing that if a woman was attacked, she could be hurt to a greater extent if she resisted than if she did not. In Texas rape trials, the woman's character and past sexual conduct was often more on trial than whether intercourse without consent had occurred. Several significant measures were passed. I was reelected in 1974 and 1976.
In 1977, if you had asked me what I planned to do next, I would have said, "I'm staying right here in the Texas legislature." However, I got a call from Washington, D.C., asking if I would be interested in becoming General Counsel for the U.S. Department of Agriculture (USDA). The caller presented it as an opportunity to work with the Administration of President Jimmy Carter, and summarized the important work of the Department. Also, the caller pointed out that I would be the first woman General Counsel for the USDA and insisted that it was an opportunity that couldn't pass up. I declined, but the caller urged that I talk to friends and political colleagues about the decision. I did, and they said, "Sarah, Washington is a place with no country western music, no barbecue, and no Mexican food; it is not civilized." Despite that I ended up saying "yes," being confirmed by the U.S. Senate, and moving to Washington. I would not have been eligible for that position had not had my law degree.
Being general counsel was a challenging and satisfying experience. One of my clients was the U.S. Forest Service, and one of my most memorable experiences was an eight-day trip into one of the wilderness areas of Montana managed by the Forest Service. We were planning for implementation of legislation that Congress had passed to create a system of wild and scenic rivers. That position gave me an opportunity to begin a process of changing the face of the General Counsel's office of the USDA and hiring a diverse contingent of younger lawyers.
My tenure, however, was shorter than planned because I got a call from the White House a year later that led to a job offer to work directly for President Carter in the West Wing. He and his wife Rosalynn Carter are people I admire greatly. (A friend recently commented that President Carter is the only President who used the Presidency as a stepping stone to doing more important things.) Working in his administration was a fabulous opportunity to be involved at the heart of governmental issues and events. I worked in an office just above the Oval Office, spent occasional weekends at Camp David, flew aboard Air Force One, attended state dinners, and participated in some of the most memorable events of the Carter years. Legal skills were not a prerequisite for the position, but I was much more effective because I had them. They were invaluable in working on administrative regulations and Congressional issues, in recommending candidates for federal appointments, in helping with the confirmation process, and in preparing and presiding at a number of briefings and White House ceremonies.
As each of you know, the Carter team lost the election in November of 1980. The morning after the defeat, we still came into work, but we were incredibly tired and dejected. Each of us, including me, had just lost employment. Previously as we entered the White House, we had the pleasure of seeing important pictures from the previous week displayed. The day after the election, there were no pictures. Instead an article was posted that was entitled Fifty Things You Can Make for Christmas for Under Five Dollars.
Each departing administration has from election day to Inauguration Day for the transition to a new administration. Those who have worked in the White House essentially have two and a half months to clear out their offices. All files and papers must be packed and sent to the location where the new presidential library will be. The final thank-you parties and events to share the White House before departure must be organized. And on Inauguration Day, the outgoing President gets a last trip home on Air Force One.
For me that day began other adventures. Over the next several years, I held a number of positions. One was working for Jim Wolfensohn in managing a family foundation. It was a wonderful introduction to the world of international philanthropy. Another was becoming the first endowed professor at the University of New Mexico School of Law. The laid-back atmosphere of Albuquerque was a welcome change, and in addition to teaching ethics, I had an opportunity to learn from others some of the aspects of law regarding Indian tribes. Obviously, legal training was necessary to teach law, it was also a help in learning the issues of philanthropy.
To quickly summarize more recent years, I became the first woman to head the Texas Office of State-Federal Relations. I left that to return to a traditional law practice and pick up the work I had done to support myself while a member of the Texas Legislature (a position that paid $400 monthly), and again became a Professor. I have also written and spoken extensively.
I am certain that new adventures are still ahead. I am so grateful that went to law school and gained the skills of a lawyer. They truly have been "the wind beneath my wings" and have let me soar in ways I could never have imagined for myself. I believe that the skills you are acquiring will likewise be the wind beneath your wings, and that those skills will give you entry to places and opportunities that you don't today visualize for yourself. I believe that on some future day you will say, just as I do, "I'm so glad that I am a lawyer."
Let us return to the discussion of Roe v Wade. The questions that I am most frequently asked by law students follow: "How did you get involved in the case?" "What was it like to try a case before the United States Supreme Court?" "What is likely to happen regarding the case doctrine in the future?"
When I look back at Roe v. Wade and its humble beginning, it is very difficult to realize that January 22, 2003 will be the thirtieth anniversary of the decision. If on the date of the decision in 1973 I had been told that we would still be talking about Roe as a pressing controversy thirty years later, I never would have believed it. Yet, it is very much a part of every election, a part of public debate, and a part of evolving legal issues. Although Roe in some aspects is a matter of history, it is also a matter of current-day concern.
If those women who approached me in 1969 about whether they could tell others about availability of legal and of legal abortion procedures had instead asked whether I would be willing to argue a U.S. Supreme Court case, I would have replied, "No way!" At that point, I had handled uncontested divorces, wills for people with no money, and one adoption for my uncle. That was my entire case experience.
The women were asking whether giving out that information could subject them to charges as accomplices to abortion, I did not know the answer to their question. Abortion was not something I had studied in law school; there had never been a Supreme Court case on the subject. Griswold v. Connecticut, a Supreme Court case involving a statute that made the use of a contraceptive device a criminal offense, was decided in 1965 while I was attending law school. It established a right of privacy within a marriage, but I don't remember studying that case in law school. I told the women I would go to the law school library and try to find the answer to their question.
Later in writing a book, A Question of Choice, about the Roe case, I interviewed some of those women. I asked, "Why did you come to me for help? Why didn't you seek out someone with litigation experience?" Their answer essentially was that they wanted a woman lawyer, and I was the only woman lawyer they knew of. And they were looking for someone willing to do the legal work for free; they hoped I would be. I was.
As research progressed, I was working with another woman from my law school class, Linda Coffee. Linda was working for a bankruptcy firm in Dallas after a clerkship with a federal judge. She also was volunteering time to work on the abortion issue. Each of us was discussing with other lawyers the possibility of a suit to challenge the constitutionality of the Texas anti-abortion statute, the type of plaintiff or plaintiffs that would be suitable, and other aspects of the potential litigation. During that process, a male lawyer in Dallas who was a friend of Coffee's explained that an unmarried pregnant woman had come to him wanting an abortion. He had told her that abortion was illegal, but that he would help her with an adoption. He also told her about Coffee's interest in challenging the Texas statute, and Linda met with her soon thereafter. That woman became known as Jane Roe in what became a class action on behalf of "all women who were or might become pregnant in the future and want the option of abortion." Wade was Henry Wade, the District Attorney of Dallas, and the person responsible for enforcing the statute in question.
The suit was filed in federal court in Dallas asking first that the Texas anti-abortion law be declared unconstitutional and asking second that an injunction be granted against continuing enforcement of the statute. The case was assigned to a three-judge panel. There were three key issues in the case. Is there a fundamental interest at issue, or, worded differently, is pregnancy fundamental? Is there a Constitutional issue involved? And, does the state have a compelling reason to regulate? After hearing the case, the three-judge panel held that the Texas anti-abortion statute was unconstitutional. However, the court refused to grant the requested injunction, the judges said they presumed that a state law-enforcement official would abide by the judgment of the federal court.
The next day, however, defendant Wade announced publicly that he would continue to prosecute under the statute. I do not believe that he meant to help us, but in fact he did, perhaps inadvertently. At that time, federal procedure allowed a direct appeal to the U.S. Supreme Court when a state law has been declared unconstitutional but state officials continued to enforce it. Based on Wade's announcement, we filed an appeal directly to the Supreme Court and filed a protective appeal to the Fifth Circuit. We were asking the Fifth Circuit to hold the door open for the Roe case if the Supreme Court denied certiorari.
You can imagine how surprised I was when I received notice from the Supreme Court that it had granted certiorari and would hear Roe v. Wade. The case quickly became the focus of national attention. Lawyers from all over the country provided suggestions about various avenues of research and what grounds to argue. Our task was twofold: to prepare the principal plaintiffs' brief and to prepare for oral argument.
Other attorneys began the process of preparing and filing amicus curiae briefs. Many amicus briefs were filed in our favor. One was filed by religious organizations, such as the Board of Christian Social Concerns of the United Methodist Church, a large segment of Presbyterians and also of Episcopalians, the Unitarian Universalist Alliance, several Jewish groups and others. Another amicus brief was filed by a welfare-rights organization. It discussed the effects of a pregnancy on teenagers and on women with few assets. It focused on the hurdles they face trying support themselves and their families.
There was another amicus brief known as the "doctors brief." Doctors played a very important role in the case. For example, one of the little-known facts about Roe is that the four affidavits filed with the petition, in addition to Jane Roe's, were from doctors. Three of the physicians were in charge of departments of obstetrics and gynecology at our largest Texas medical schools in Dallas, San Antonio, and Galveston. These physicians, along with their residents and interns, were responsible for treating women who came to the public hospitals affiliated with the medical schools, hospitals which had large emergency room facilities and were the source of care for many of the Texas indigents and its poorer citizens. Many of the women they treated were suffering from the consequences of self-induced or illegal abortion. The affidavits generally stated that something had to be done about this situation. The costs in terms of the health and lives of women were too great. The fourth affidavit from a doctor was one submitted by the Director of the University of Texas Student Health Center. My memory is that the Center had a policy that birth control would not be given to female students unless the student certified that she was within six weeks of marriage. The policy was based on the fact that a woman needed to start the pill six weeks before marriage to be protected on her wedding night. The Director talked about the large number of students seen at the health center who were experiencing an interruption of menses and his concern for the medical perils of what those female students might do.
The amicus brief that we called the doctor's brief was one that included the American College of Obstetricians and Gynecologists. Other Amicus briefs in our favor included one submitted by a large group of law school deans and constitutional law professors, one submitted by a great number of women's organizations, such as National Organization for Women, the National Women's Political Caucus, and others.
Conversely, as you would expect, there were amicus briefs filed against our position. The Catholic Diocesan Attorneys Association, and the Citizens for the Unborn are some examples. There were also briefs from some law professors and physicians who were opposed. In sum, the briefs filed with the Supreme Court in Roe stacked up to be over a foot high.
The most directly relevant U.S. Supreme Court case was the 1965 case of Griswold v. Connecticut. Connecticut, and some other Eastern states for that matter, had criminal laws prohibiting the use of contraception, a prohibition that extended to married couples. Estelle Griswold, the Director of the New Haven Planned Parenthood, along with a physician, Dr. Lee Buxton, gave a woman a contraceptive device. They were arrested, prosecuted, and convicted of being accomplices to the use of a contraceptive device. The Supreme Court's opinion held that there is a right to privacy which includes the right to decide whether to bear or beget a child. I would argue in Roe that the right of privacy should also include the decision of whether to continue or terminate a pregnancy.
The Supreme Court allows thirty minutes per side for oral argument, or one hour total per case. The time is so limited because in theory the Justices have read the briefs and their clerks have briefed them. Counsel are there to simply answer the questions of the Justices.
Informal moot courts were one of the primary ways that prepared for oral argument. Law students, people interested in the cause, and even some of my law professors helped me prepare by firing questions at me. Frankly, I never knew if the law professors truly wanted me to win or whether they just loved pretending that they were Supreme Court Justices.
After arriving in Washington the day before oral argument, I went to the Supreme Court building to see the courtroom and to learn where I should stand for oral argument. I took notice of the three lights on the podiums for counsel: green for "begin," yellow for "time is about up," and red for "quit." I located the lawyer's lounge, a room near the courtroom set aside for lawyers to be able to sit quietly and review their notes just before they proceed to the courtroom.
The night before oral argument, sleep seemed to escape me. I would think of a question the Court might ask, get up to check my notes, and go back to bed. Soon that scenario was played out again, and then again.
The morning of oral argument before the Supreme Court, I was incredibly nervous. I've said that felt the weight of the world on my shoulders that morning. I had done everything possible to prepare, but I was intensely conscious of the importance of the Court's decision and wanted so much for the case to be decided in favor of a woman's right of privacy regarding decisions about pregnancy.
Arriving at the Court building, I went up the marble steps to a landing with columns that seemed to reach into the sky, then through the doors of the Supreme Court building. Between the doors and the Court's chamber is a marble corridor; I remember the echo of my steps as I walked.
After reviewing my notes in the lawyer's lounge, I was preparing to go to the courtroom. I decided I should visit the women's room. In the lawyer's lounge I only found a door marked "Men." As an aside, each time after that when I returned to Washington to hear cases argued, I have gone to check on whether the lawyer's lounge had a women's room yet for attorneys to use before presenting their cases. Fairly recently that was finally accomplished. So there is an appropriate facility for each of you should you be preparing to argue a case before the Supreme Court. Times change slowly, but they have changed in that regard at the Supreme Court.
People entering the courtroom go through very heavy red-velvet curtains. As one passes the curtains, three sections of what look like church pews with fancy padding are visible. The section on the left is called the three-minute section. It is for tourists; one group leaves and another group enters every three minutes during oral argument. The heavy curtains are to help muffle the resulting noise. Another section is for those who want to hear an entire case and is available on a first-come, first-seated basis. For all of the sections, there are strict rules that prohibit putting one's arm on the back of the pew, whispering, chewing gum, or taking notes. Personnel of the court enforce strict decorum.
A gold railing separates laymen from lawyers admitted to Supreme Court practice. There is a section of individual chairs inside the railing for those lawyers. Past the chairs are two large tables on each side of a center aisle. As one approaches the Supreme Court bench, those representing the plaintiff sit on the left, those representing the defendant on the right. As I took my seat in the courtroom, I looked to the left and saw the section for the press, which has about seventy-five seats and was absolutely packed. To my right was first the table for defendant's counsel and past that the section for family, friends, and invited guests of the Justices; it too was absolutely packed. To present oral argument, counsel stands at a podium not far from the Justices. Of course, the Chief Justice is in the middle, and the other Justices sit in alternating order of seniority down to the ends of the bench. Above the seat of the Chief Justice is a huge clock so counsel can watch the minutes of oral argument ticking by.
The court setting is very formal. For example, when it is time for the Court to convene, the Marshall comes out in striped pants and a tail-coat and says, essentially, "Oyez. Oyez. Oyez. All ye please rise and face the court." There is a hush. Everyone stands; the curtains behind the bench part, and the Justices enter in their black robes.
When the Justices were settled, Chief Justice Burger said, "Ms. Weddington, if you're ready, you may begin." My thirty minutes commenced. I had barely said, "Mr. Chief Justice and may it please the Court. This is the case about...." And immediately, the Justices began to pop questions. That continued for the entire period. If you'd like, you can hear most of the oral argument as part of a tape series called May It Please the Court. I think you would find it interesting.
When oral argument ended, I had no idea if I'd won or lost. A few months later, I learned that the Court wanted the case reargued, which is most unusual. Even more unusual was that the Court did not direct counsel to address any specific aspect of the case. It essentially just said "come back and do it again." And once again, I left the Court not knowing whether I had won or lost.
A custom of the court that I'm told dates back to the time of Thomas Jefferson is having a goose-quill pen at the place of each counsel. The pen is a souvenir for having presented before the Supreme Court, because so few attorneys ever get to do that. Since I argued the case twice, I have two of the pens. One is at the Women's Museum in Dallas, and the other is in my office.
As Monday, January 22, 1973 began, a couple dozen people knew that what seemed like an ordinary day would not end that way. I was not one of them. It was near freezing that morning in Washington, D.C. as personnel of the United States Supreme Court rushed to work. The nine Justices, their clerks, and a handful of others at the Court know that the opinion in Roe v. Wade would be released when the Court convened at ten that morning.
Secrecy is the court's standard. Until an opinion is actually announced, no one within the court is to tell anyone outside the court what is happening, but rumors do sometimes emerge. TIME Magazine, on October 30, 1972, said that "court-watchers are convinced that the Justices will eventually declare abortion bans unconstitutional."
On Friday, January 19, 1973, at the regular Justices conference, the cases to be handed down the next week had been determined. There were five of them, and Roe was placed on the list. Chief Justice Warren Burger had finally indicated his opinion on the case, he was the last of the Justices to do so. Justice Harry Blackmun, the author of the Court's opinion, was convinced that Chief Justice Burger had delayed the release of the opinion to the allow the United States President, Richard Nixon, who was opposed to abortion, to have the spotlight for his Inauguration Day. The inauguration took place on Saturday, January 20, 1973–just two days before Roe was handed down.
Once the list of cases to be announced was certain, an order went to the Court's printers to have copies of the opinions ready Monday morning for release and distribution. On Monday morning, those copies were stacked in the Court's Office of Public Information face down so that no one could see the name of the case or its content until it was announced from the bench in the courtroom.
For some connected with the Court, there was an excited air of anticipation. Justice Blackmun's wife and daughter Sally, a lawyer, were sitting in the family and friends section in the courtroom as time for the court session approached. Justice Blackmun was once again going over an extended explanation of the opinion and the basis for it, which he would read when the Court session began. He was assigned the task of researching and drafting the Court's opinion in the fall of 1971 and had been working on it since then. Before becoming a Justice, he had been an attorney for the Mayo Clinic and was the member of the Court with the most extensive medical background.
At 10:00 a.m., the Court's session began. The Marshall of the Court, in striped pants and cutaway tails, had intoned in a deep authoritative voice, "Oyez, Oyez." The Justices in their black robes entered the courtroom through deep red velvet curtains and took their seats with the Chief Justice in the middle and the other Justices first to his right, then to his left in order of seniority.
Chief Justice Berger announced the opinions being released; the second one was Roe v. Wade. The Court Clerk called the Court's Office of Public Information to authorize release of the printed copies. As Justice Blackmun read the explanation that he had prepared, some members of the press listened, while others began a stampede to that office to grab opinions and begin a Herculean effort to be the first to report the story. Members of the press hurriedly scanned the opinion and began to organize coverage: lists of people and organizations to be called for comment were compiled, and the calls started. The Clerk authorized a telegram to be sent to me.
In Austin, January 22, 1973, began as a wet, wintry, unpleasant day. I had momentarily thought how nice it would be to stay in bed, but that was an impossible luxury. Days earlier, at twenty-seven, I had been sworn in as the first woman elected from Austin/Travis County to be a member of the Texas Legislature. A session was to begin at 11:00 a.m., and I had work to do before that.
A little after 9:00 a.m. Central time, the phones began ringing in my Austin law office and in my Capitol office. A reporter asked my assistant, "Does Ms. Weddington have a comment today about Roe v. Wade?" My staff assistant replied, "Should she?" The reporter told her that it had been decided that morning. I can still hear my assistant saying, "How was it decided?" The reporter told my assistant that I won the case by a vote of seven to two. She immediately told me. What an exciting moment that was!
Abortion was now legal. The abortion laws of most states were instantly unenforceable. The news flashed across the country via radio and television. Jubilation and confusion prevailed in my office. People were coming by to offer congratulations, people involved in the case were calling, we were trying to call people who had helped with the case, flowers were being delivered. Many people who are fifty-five or over still remember exactly where they were when they heard about the Roe decision.
However, we wanted to know exactly what the Court's decision said. Soon a telegram arrived from the Supreme Court. The telegram was very short and said that a copy of the opinion was being air-mailed. The telegram was collect. I cannot remember what the cost of receiving the telegram was, but I was certainly happy to pay whatever it was.
I released a statement that read as follows: "I am pleased because of the impact this decision will have on the lives of many women who in the past have suffered because of the current Texas law. I am especially pleased that the decision is a solid seven-to-two decision and that it was based on the right of privacy. I feel very humble to be able to represent the class of women affected by this decision and hope their lives will be better for it."
The news traveled like wildfire, and some people could not believe the news flashes they were hearing. One group of students in Texas had a fund of $500 available as a loan should one of them need to leave the state for an abortion, they checked the accuracy of the news and then divided up the money. The women in Austin who had originally asked me to file suit were dancing and celebrating. Also, a doctor, who had been indicted for performing an abortion on a patient who was afflicted with measles, was driving to Florida, heard the news on the radio, and stopped in a driving rain to call home for more details. She knew then that her medical license, which had been in jeopardy, was now safe.
The week before the decision, women were often being treated in hospital emergency rooms for the consequences of illegal and self induced abortion. After Roe, that virtually disappeared. Women no longer had to leave their home states to get abortion services. For example, one woman in Austin was scheduled to be on a plane at three that afternoon going to California for a legal abortion. She called her doctor and asked if he could help. He could, and he did at five that afternoon.
At the same time, statements were being released by groups opposed to the decision.
The news about Roe was soon preempted by other news from Austin: former United States President Lyndon B. Johnson, had died. He suffered a heart attack while at his ranch outside of Austin. His body would soon lay in state first in Austin, then in Washington, D.C. The headlines the next day would be about former President Johnson.
That night, my husband, Ron, and I had a moment alone to talk about the day's events. We talked about how the abortion issue could be checked off, and we could begin to work on other issues. We thought a seven-to-two United States Supreme Court opinion was the equivalent of one written in concrete.
Thirty years later, Roe is one of a handful of Supreme Court cases recognized by most Americans by name and by subject. It is known internationally as well. However, thirty years later the controversy about abortion continues. There have been so many dramatic changes since Roe, and they remind me of the fact that relatively few people today remember what it was like before the decision.
As I said earlier, if anyone on January 22, 1973 had told me that the abortion issue and the Roe case would be a matter of intense debate in late 2002, I would never would have believed it. I would have been wrong.
Roe involved three key issues. The first was whether pregnancy was a fundamental right. In arguing Roe v. Wade, I thought it was very important to put this in the context of the larger picture of women's lives. To me women's lives are like a huge wheel. The spokes are varied aspects of life. At the time I was arguing Roe, public school teachers who became pregnant were often fired if they didn't resign first. The Texas legislature had not yet passed the equal credit laws, state rape reform had yet to be passed. In Roe, we argued all sorts of broader issues concerning women's roles in society, but to me the hub of women's lives is the issue of who controls reproductive decisions. If a woman cannot make key reproductive decisions for herself, then effectively she is prevented from deciding other important aspects of her life.
One issue, as said, was whether pregnancy is "fundamental." We argued that it was a fundamental right because of all the effects that pregnancy has on women. That was especially true for young women. For example, if a high school student became pregnant, she was usually forced to quit school. At that time schools didn't have special classes to accommodate pregnant students, as they sometimes do now.
The second issue was whether there is a constitutional right involved. I am certain that in your constitutional law classes a great deal of time is spent talking about this very issue. It's true that the word "abortion" is not mentioned in the Constitution, but certainly a central focus is on limiting the ability of government to interfere with the rights of citizens. I was primarily urging the Court to consider the Fourteenth Amendment. However, I also made alternative pleas under the First, the Fourth, the Fifth, the Eighth, and other Amendments.
The third issue was whether the State had a compelling reason to regulate abortion. The Texas Attorney General's office was arguing that the fetus was a person; therefore, there was a compelling reason to regulate. Our rebuttal argument on this issue was that the fetus had never been treated as a person under Texas or federal law.
For example, the Constitution states that "all persons born or naturalized in the United States . . . are citizens of the United States. . . ." Consider income tax deductions. A taxpayer who is pregnant for eight and a half months of 2002 but who does not deliver until 2003, cannot take an applicable income tax deduction until 2003. Similarly, pregnant women who travel outside the country do not get two passports, they get one. In Texas, the right of inheritance is contingent on being born alive. There are many additional examples. We were arguing that the law has never treated the fetus as a person and that birth was the critical moment to obtain legal rights.
The majority opinion was written by Justice Harry Blackmun, I'm sure you have or will read the opinion. Justice Blackmun had been legal counsel for the Mayo Clinic before being appointed to the Supreme Court. Perhaps the Chief Justice appointed him to write the opinion because of his special expertise in medical-legal issues. The dissenting Justices were now-Chief Justice William Rehnquist and Justice Byron White.
Not only is the Roe opinion and the issue of abortion today a matter of fervent debate, but I believe the conflict around the issue is more intense now than it was in 1973. That conflict is being played out in three separate arenas: cases and judicial consideration, state and federal legislation, and efforts by each side to sway public opinion.
I had assumed that as years passed and abortion was a legal option, people would be increasingly adamant that reproductive decisions should belong to citizens, not government. Polls do continue to show that a majority of the American population believe exactly that. However, I failed to accurately factor in how adamant those opposed to abortion would be and how effectively they would organize. In my opinion, it is harder today to motivate people to work for pro-choice issues and causes than it was prior to 1973. Perhaps that is because only those fifty-five or older remember what it was like before Roe and the tragic stories of that time. Younger people have not had the experience of living at a time when abortion was illegal; instead, they have only the experience of being able to make their own decisions at a time when they or their friends can access a safe, legal abortion. As memories of the period before Roe dim, it is harder to motivate people to act to retain Roe and the right of choice.
Today the spotlight in this regard is on the individuals who serve as United States Supreme Court Justices and on those who appoint and confirm those individuals. There have been too many Supreme Court opinions regarding abortion to summarize each of them in this short presentation. One of the most important, however, was Planned Parenthood of Southeastern Pennsylvania v. Casey. I think of Roe and Casey as being the most significant opinions. Justice Sandra Day O'Connor wrote the Casey opinion. The Pennsylvania statute involved did not make abortion illegal, but it restricted access in a number of ways. O'Connor's opinion dramatically expanded the number of state abortion restrictions declared constitutional, restrictions that had been declared unconstitutional in prior cases. The opinion was also important because it shifted the burden of proof.
Until Casey, the burden of proof was generally on the State to prove that it had "a compelling reason to regulate." Under that burden of proof, the State generally lost and regulations were overturned. After Casey, the burden of proof was essentially on those challenging regulations to demonstrate that the regulations were "an undue burden." As a consequence, the Court is approving far more extensive regulations than before Casey.
The only regulation at issue in Casey that was overturned was a provision that no married woman could obtain an abortion without first certifying that she had notified her husband of her pregnancy. However, there were exceptions for circumstances where he had not been involved in creating the pregnancy, if he could not be found, or if domestic abuse might result. I learned for the first time, reading the documents filed with the Court and being in the courtroom for Supreme Court arguments, that rates of domestic violence tend to increase when the woman is pregnant and not decrease as I had expected.
ln general, I think of the Justices as being 3–3–3 on the issue. Three of the Justices have joined opinions suggesting that Roe should be overturned. Those are Rehnquist, Scalia, and Thomas. Three have joined opinions suggesting that Roe should be left alone. Those are Stevens, Ginsburg, and Breyer. And three have joined opinions that have been unwilling to overturn Roe but which say it should be modified. Those are O'Connor, Souter, and Kennedy.
Others analyze the Court as a 5-4 split because in the Stenberg v. Carhart case out of Nebraska, Justice Kennedy voted with Rehnquist, Scalia, and Thomas to uphold a Congressional restriction on forms of medical abortion that could be used.
That narrow margin on the Supreme Court has focused attention on changes that might occur in its make-up. There have been rumors that Justices Rehnquist and O'Connor might be considering retirement. There has been speculation that Justice Stevens, the oldest member of the Court, might be approaching retirement. Generally Justices do not announce their intentions until the end of a Court term, so it is likely to be approximately the end of June or early July of 2003, before the public has more information. That narrow margin also causes focus on the process of nominating and confirming Justices. President George W. Bush has indicated that he is opposed to abortion; certainly many of his strongest supporters are actively working to overturn Roe. Attorney General John Ashcroft has long had very fervent opinions against Roe and legal abortion. It seems likely that he would have the ear of the President regarding federal judicial appointments.
Right now, the Democrats control the U.S. Senate by only one vote. However, the elections next month could alter that. If the Republicans take control of the Senate, the head of the Senate Judiciary Committee is likely to switch from the current Chair, Senator Patrick Leahy of Vermont, who supports Roe, to a Republican Senator opposed to Roe. If one or more vacancies occur on the Supreme Court in 2003, the issue of abortion will certainly be front and center during the confirmation process.
At the same time, a variety of pieces of legislation are likely to be considered in Congress and state legislatures this coming spring that relate to reproductive decisions and to access to abortion. The November elections will have a dramatic effect on the fate of those measures.
Each side of the issue will be striving for public relations victories as the time approaches for consideration of candidates, of new Justices, and of pending legislation. What will happen to Roe and related issues is in doubt. Obviously, I hope that reproductive decisions will remain personal decisions, not government decisions.
But I have every confidence that you will find many ways to use the legal skills that you are developing here in law school. I remember in law school wondering if all the effort and investment of time and money would turn out to be worth it. There were moments when I wondered if I should be doing something else. You may have had those same questions and doubts. I am here to tell you that law will give you many options and one of these days I believe that you will, as I am, be so grateful that you continued this path. I am envious of your intellect and skills. You are better at using the computer than I am. You speak more languages. You have so many assets.
Recently I was introduced at a luncheon by a young woman lawyer who said, "I am proud to introduce Sarah Weddington. I had never met her until today, but I am her daughter-in-law." It was a wonderful introduction because it reminded me of how the legal field has expanded from my school days to yours. It reminded me of the satisfaction of having changed a variety of laws to allow women more options and opportunities. Today, there are more and more women attorneys, and also more men who are very supportive of women and of women's issues.
When I look back, I am so glad that had the opportunity to go to law school and gain the skills of a lawyer—to write, to argue, and to present various points of view. I am glad that I was able to argue Roe v. Wade. I have delighted in the other opportunities that my degree and skills have created.
There are many issues that need your time and creativity. I hope that law will hold for you as much satisfaction as it has for me.Thank you
The content of this lecture has been edited for publication.
Attorney Sarah Weddington is nationally known for her legal work, government service, and leadership expertise. A 1967 graduate of The University of Texas School of Law, she was the winning attorney in the United States Supreme Court case of Roe v. Wade, which was decided on January 22, 1973. In 1972, she became the first woman elected from Austin/Travis County to serve as a member of the Texas House of Representatives. She served three terms before resigning to become the first woman to serve as General Counsel for the U.S. Department of Agriculture, a Presidential appointment requiring U.S. Senate confirmation. In 1978, she transferred to the White House and served as Assistant to the President for President Jimmy Carter. From 1983 to 1985, she represented the State of Texas in Washington, D.C. as the first woman director of the Texas Office of State-Federal Relations. She has received numerous awards and serves in a number of volunteer positions, including that of a board member for The Foundation for Women's Resources that created The Women's Museum: An Institute for the Future. Currently, she is an adjunct professor at The University of Texas, Austin. 410 U.S. 113 (1973).
See Sarah Weddington, Jan. 22, 1973, Getting the Right to Choose, in Eighty Days that Changed the World, TIME Mag., Mar. 21, 2003, at A54.
See Roe v. Wade, 314 F.Supp. 1217 (N.D.Tex. 1970).