Sarah Weddington’s Unexpected Path to Roe
When Sarah Weddington, who died last week at the age of 76, first argued Roe v. Wade before the U.S. Supreme Court, in 1971, she was just four years out of law school at the University of Texas at Austin. Little in her early life foreshadowed the key role she would play in the fight for abortion rights. Weddington was the daughter of a Methodist minister in Abilene, Texas. She had headed her high-school chapter of the Future Homemakers of America and had been assistant house mother for the Delta Gamma sorority. Weddington’s legal background was also atypical, to say the least, for members of the Supreme Court bar. When she stood before the justices, age 26, she had handled nothing more, she would recall, than “uncontested divorces, wills for people with no money, and an adoption for my uncle.”
But as Oliver Wendell Holmes once observed, “the life of the law has not been logic; it has been experience,” and Weddington had experience that spoke to the issue at hand. Weddington had been discriminated against because she was a woman: Although she had been a top student through law school–and one of five women in a class of 1,600–she had been unable to find a job at a law firm. More pertinent still, she had had an abortion, after driving in 1967 with her future husband to a clinic just south of the Mexican border. It was a secret she did not reveal until publishing her memoir, A Question of Choice, a quarter century later.
Weddington had never planned to join the abortion-rights movement. But in November 1969, a group of women in Austin—University of Texas alumnae whom Weddington knew—needed legal advice: Could they be prosecuted for referring women to abortion providers in Texas, where abortion was illegal? Weddington investigated the matter and concluded that the law was ambiguous. The women came back with a second question: Could the anti-abortion laws in Texas be challenged in federal court? Weddington reached out to a classmate from law school, Linda Coffee, who had clerked for a federal judge and was perhaps better equipped to provide guidance. Coffee told Weddington that she was already preparing to challenge the Texas laws but needed a plaintiff. After Coffee found one—a Dallas waitress named Norma McCorvey, to whom Coffee gave the pseudonym “Jane Roe”—she and Weddington prepared the lawsuit together. But when Roe was ready to be filed, in March 1970, Weddington was hesitant. “Sarah didn’t want to sign at first,” Coffee told me. “I think she was just cautious.” Only Coffee’s name is on the original filing. But Weddington quickly signed on as co-counsel and never looked back.
Weddington and Coffee split the oral arguments when Roe came before a three-judge federal panel in Dallas. But when the case reached the U.S. Supreme Court, both lawyers agreed that Weddington alone should argue it. Coffee by nature shunned the spotlight. Weddington did not—indeed, she had enjoyed the spotlight ever since soloing in the church choir as a girl. And where Coffee was casual, if not unkempt, in her appearance, Weddington was fastidious. Preparing for the oral arguments in Washington, she honed her presentation with moot-court sessions as well as mirrors—the better to determine, as she would later explain, “how you were getting your message across.” On December 13, 1971, wearing a suit and pearls, Weddington stood at a mahogany lectern facing the raised bench and addressed the seven justices. (Retirements had caused two vacancies that were yet to be filled.) All were men, and Weddington spoke to them not only about state interest and legal precedent but also about the lengths women went to in order to get an abortion, and about the “determinative” effects of pregnancy on a woman: “It disrupts her body, it disrupts her education, it disrupts her employment, and it often disrupts her entire family life.” She and Coffee had amended Roe to make it a class-action suit, and Weddington made the case for the constitutional right of all Americans “to determine the course of their lives.”
By the time Weddington returned to the Court, 10 months later, to argue Roe again—this time before a full complement of justices, still all men—her marriage was bound for divorce, she had quit her job as a city attorney in Fort Worth, and she was seeking election as a state representative from Austin-Travis County. Weddington won the race in November 1972, and then, come January, savored victory in Roe as well. In his private notes, Justice Harry Blackmun always graded the lawyers appearing before the Court, and he had given Weddington a C+ for her initial argument (the same grade he once gave another lawyer, Ruth Bader Ginsburg). But Blackmun also wrote the 7–2 opinion in Roe v. Wade that largely validated Weddington’s position and made her famous. Coffee never would be well-known, and preferred a low profile anyway. As the years passed, Weddington cut her co-counsel from the story of Roe. Speaking before the Senate Judiciary Committee in 1991, she introduced herself with the words: “My name is Sarah Weddington. I am the attorney who litigated and won Roe v. Wade.” Weddington even downplayed the role of the lawsuit’s plaintiff: “All Jane Roe did was sign a one-page affidavit,” Weddington said in 1995, after McCorvey, now a born-again Christian, publicly renounced the Roe decision. “She was pregnant and didn’t want to be.”
It is true that McCorvey did not care about the larger fight for reproductive rights. But in 1973, on the day Roe was handed down, Weddington had told the press the opposite: that the plaintiff had courageously chosen to carry her pregnancy to term lest getting the abortion she wanted, whether in Texas or elsewhere, might jeopardize her legal standing. In an interview three years later, Weddington maintained that she and her co-counsel had told their client that if she wanted to go out of state for an abortion, “we would help her.” Weddington went on: “But I think, even then, she had in some ways a sense of the historic proportion of the case.”
None of these statements were accurate. McCorvey had no sense of Roe’s importance when she filed suit, and she would have traveled anywhere to get an abortion—to California, for example, where abortion was legal through the first 20 weeks of pregnancy. McCorvey was nearing that cutoff point in her pregnancy when she first met the two women who would become her lawyers, and the lawyers did tell her that it might be too late to get an abortion. But the lawyers needed a client, and, as both Coffee and McCorvey confirmed to me, they never alerted McCorvey to the possibilities that might yet be available to her, let alone offered to arrange a trip out of state. The ethical lapse by both lawyers is remarkable, and for Weddington in particular. She had advised an abortion-referral network (which was flying women from Texas to California every weekend) and had had an abortion herself. It is all the more remarkable in light of the fact that, fresh out of law school, she had helped draft the American Bar Association’s ethical standards, which state that every lawyer must work “solely for the benefit” of the client. Weddington never really saw the client as an individual, a woman named Norma McCorvey. Rather, she saw the class-action suit, filed on behalf of “all women similarly situated.” Plaintiffs, she later wrote, are “vehicles for presenting larger issues.”
After Roe, Weddington served three terms in the Texas legislature. She held posts at the National Abortion Rights Action League, in Jimmy Carter’s White House, and at the University of Texas. But without question, the pinnacle of her career was Roe. An article about Weddington in Vanity Fair in 1992 described her career as “a long study in anticlimax.” If the assessment was harsh, Weddington herself once made a similar point. “We expect our lives to be a progression,” she observed in 1998. Hers, she acknowledged, had not been.
Except that, in a way, it had. Weddington had concealed the fact that she had had an abortion for 25 years, and her discomfort with her secret may well explain her initial reluctance to add her name to the Roe lawsuit. Asked by an interviewer, more than a decade after Roe, if she had ever had an abortion, she dismissed the question as “irrelevant.” But it was not irrelevant. Her abortion, she later explained, was why she had “spent this much time” on abortion rights; it was on her mind during the hush that came over the chamber before she addressed the Supreme Court. Weddington had come to see the individual at the heart of Roe as herself, and she thus took ownership of the case—in fact, took more than she deserved. She held Roe close even in death. Some years ago, Weddington commissioned a granite monument, weighing almost two tons, to mark her grave in Austin’s Texas State Cemetery. It is carved with the words: Winning Attorney, Roe v. Wade, U.S. Supreme Court, 1973.