The Woman Who Won Roe v. Wade Has a Few Thoughts About Trump’s SCOTUS Pick

Even before Justice Kennedy announced his retirement and President Trump nominated Brett Kavanaugh to replace him, many people suggested that part of the reason a conservative-leaning court could overturn Roe v. Wade was because the decision was a “poorly reasoned mess.” Sarah Weddington, the woman who argued the case in front of the Supreme Court, has some thoughts about that: “There’s an old saying: It’s hard to argue with success. We won the case, and it has meant that abortion has been legal since January 22, 1973. So I’m a little leery of people who say, Oh, they should have done this, they should have done that.”

Weddington hadn’t been looking to take on such a monumental case. She was a recent law school graduate working at her alma mater, the University of Texas, when a group of women asked for her help. They’d rented a small space across the street from the university to establish a counseling center, and, using information they’d gleaned in part from Our Bodies, Ourselves, were giving advice to women on how to prevent a pregnancy. Quickly they discovered that women had other questions too: “Women would come to them and say, ‘But I’m already pregnant, where can I get an abortion?’” Weddington says. In Texas, the procedure was outlawed except to save the life of a woman. “But nobody knew what that really meant,” she says. “So doctors were afraid to do abortions.”

There was no internet, no easy way to look up laws in every county and every state, no way to find a provider. There were places like Mexico, where abortion was illegal, but not always safe. When the students discovered abortion was legal in California, Weddington recalls, they set up a network helping women get the care they needed, planning logistics and raising funds for travel. “Women could leave Dallas airport on a Thursday night and go out to have the procedure and be back Sunday night so they could go to work or class on Monday,” she says. But their work carried considerable risk: If caught, they could be prosecuted as accomplices to the crime of abortion. This was not a hypothetical concern; just a few years earlier Estelle Griswold, the director of the New Haven Planned Parenthood, was arrested, prosecuted, and convicted of being an accomplice to the crime of providing information about contraception.

The group knew Weddington would be a sympathetic lawyer—they’d all talked about things like how frustrating it was that some male professors didn’t admit women into their classes, or how unfair it was that women needed a father or spouse to get a credit card. “They came to me and said, ‘Sarah, we think the only way we can really deal with this is to challenge the law,’” Weddington says. But Weddington had never appeared in federal court, and she’d only handled cases such as adoption and divorce. “I said, ‘Well, I really think you should get someone with more experience than I have.’ And they said to me, ‘What would you charge us to do this lawsuit?’ And I said, ‘Oh I’ll do it for free.’ And they said, ‘You are our lawyer.’ And that’s how I got the case.”

The first thing she did was call a former law school classmate, Linda Coffee, who was working in Dallas at a bankruptcy firm and had also thought about ways to overturn abortion restrictions. “She said she enjoyed her firm, but banruptcy was a little dull,” Weddington says with a laugh. The two agreed to be co-counsels and Coffee started working the phones in Dallas while Weddington began outreach in Austin, looking for the right plaintiff. Then a friend of Coffee’s suggested a woman: She was 21 years old and pregnant with her third child (she’d already given up one child for adoption), and was struggling financially. Weddington flew to Dallas, and met Norma McCorvey for the first time in a pizza parlor. “It seemed like she would be a person people would be sympathetic with,” Weddington recalls. There was no way the case could be resolved before McCorvey gave birth. So Weddington and Coffee turned the case into a class action suit on behalf of all women in Texas who were or might become pregnant and wanted the option of abortion. Coffee filed the petition, giving McCorvey the pseudonym Jane Roe, against Dallas District Attorney Henry Wade, who represented the state of Texas (and had been involved in the prosecution of Jack Ruby for killing Lee Harvey Oswald). Roe V. Wade was born.

It was a professor at UT who had advised Weddington and Coffee to make the case a class action, the first of many times Weddington found it to be immensely helpful to be working at the law school. “I had daily contact with a number of professors… [and] there were a good number of law students who offered to look up cases for me or write certain parts,” she says. “There were a lot of young people who were very involved in the case. And I was very grateful for their help.” Also backing the cause: many of the doctors in Texas. One Dallas-area hospital had what was then called an infected obstetrics (IOB) ward, where women were treated after botched abortions. “Most doctors who went to med school in the state ended up doing an internship or residency in the IOB ward,” says Weddington. “So they really knew what it was like to try save the lives of women, or the fertility of women, who had had illegal abortions.” Doctors from the American College of Obstetrics and Gynecology and other groups signed supporting briefs in the case.

After her arrest for disseminating information about contraception, Estelle Griswold had filed suit against the state of Connecticut and in 1965 the Supreme Court ruled in her favor that there was a right to privacy for a woman to decide for herself if she should use some form of birth control. But the Court had never heard an abortion case before. Weddington and Coffee threw everything at them that they could: They argued that women have the right to abortion based on the first amendment, the fourth amendment, as well as the fifth, eighth, ninth, and fourteenth amendments. “One justice wanted the case decided on the first amendment. But there were others who wanted it decided on the fourteenth, because that’s where the Griswold case was decided. So we were trying to thread our way through lots of Supreme Court opinions,” says Weddington. “But this was the first abortion case. So we didn’t know for sure what would be the most appealing argument to them, so we tried to cover it all.” Her arguments convinced seven of the nine justices. Harry Blackmun, who had been legal counsel to the Mayo Clinic before his tenure at SCOTUS, was selected to write the decision. “I am told—though I can’t prove it—that he spent part of the summer talking to the doctors at the Mayo Clinic before writing the opinion,” she says. “That’s why Roe v. Wade talks about how this is something for a woman to discuss with her doctor.”

Predicting the Future of Roe

Weddington, who has now seen her monumental case debated and dissected for four decades, has no illusions about what might happen if any of Trump’s picks are confirmed to the court. “I think the administration is trying to make people think Kavanaugh will not turn over Roe v. Wade,” says Weddington. Although Kavanaugh has said that he will “abide by precedent,” she believes that’s because he knows Susan Collins, the U.S. Senator from Maine and possibly a swing vote on his nomination, will not vote for someone who is explicit about his intent to overturn Roe. “The problem,” she points out, “is he couldn’t overturn Roe as a lower court judge. But he can as a member of the U.S. Supreme Court.”

Weddington has heard the theories about why Justice Kennedy chose this moment to retire—how President Trump campaigned for Kennedy to step down; how Ivanka Trump flattered the justice by bringing her daughter to the Court (and asking to sit in Kennedy’s family and friends box); how Kennedy’s son may have played a role in financially backing Trump. She’s not surprised that Trump’s nominee once clerked for Kennedy.

“For several years now I’ve talked about how my biggest worry is who is going to be on the Supreme Court in the future,” she says. “You’ve got four judges who are not going to diminish or overturn Roe v. Wade. But you need five. … I think Kavanaugh would enter the courtroom to hear a case against Roe with the determination to help overturn it.”

It’s important not to just watch the musical chairs of justices, but to keep an eye on what kinds of cases could come before the court. Some cases might lead the Court to endorse restrictions on abortion access—for example, making waiting periods or parental consent mandatory (as Kavanaugh hinted he might do in one case involving a teen immigrant). But if the Court were to overturn Roe outright, it would be much like the days when Weddington started her career: women would travel over state lines to places like California or New York to get care. “People are already starting to think about, OK, how do we find the money for people with very few funds to get from where they are to a place where it’s legal to have an abortion?” she says. “Over a period of months you could certainly have women desperate to find a place to get an abortion and, I’m afraid, turning to self abortion or illegal abortion someplace.”

Weddington revealed in her book, A Question of Choice, that she’d traveled to Mexico for an illegal abortion in 1967. “When I won Roe v. Wade, I thought we had fixed that issue, and now what I know is that we didn’t,” she says with a pained voice. “I thought Roe would follow the trajectory of Griswold v. Connecticut: The first year afterward it was still very hard for people to access contraception. But then gradually people who might have been opposed to contraception or who thought women shouldn’t have sex until they were married—the intensity of their opposition diminished.” At a time when many elected Republicans like Barry Goldwater, President and Mrs. Ford, and California Governor Ronald Reagan (who later flipped on the issue and became ardently pro-life) were pro-choice, Weddington says, “I thought as the months went by after Roe the opposition to abortion would diminish. Well, I was wrong.”

Shaping the Future of the Court

Back in 1972, while arguing the case, Weddington was hopeful for a victory, but far from sure. “So I thought I ought to run for the legislature because at least that way I’d be where I could change the law in Texas,” she says. She was in her new office in the state house when she the phone ran on January 22, 1973: “A reporter from the New York Times said, ‘Does Ms. Weddington have a comment today about Roe v. Wade?’ and my assistant said, ‘Should she?’ and the reporter said ‘Well, she won it, 7-2.’” That’s how she heard the news; an official telegram followed, and the court airmailed a copy of the opinion.

Today, court opinions are available with a quick Google search. Another thing that has changed: a record number of women are running for office, and Weddington is supporting many of them, particularly Lizzie Pannill Fletcher in Houston, who’s running against a nine-term incumbent. “We really need [their] votes in the legislatures and Congress,” she says. “They will decide what new laws will pass, they will decide who will get to set on benches at various levels. This issue will fall again to the shoulders of people who are young.”

Weddington herself has had an impact on who sits on federal courts. After serving in Texas, she became the assistant to the president in the Carter Administration, and says President Carter explicitly tasked her with helping him get more women on the federal bench. In 1978, very few women were on the federal bench. Weddington was part of a committee to change those numbers. (By the time Carter left office there were 40, with more in the pipeline.) At one of their meetings, according to Weddington, she proposed a female judge she’d wanted to nominate to the circuit court; a colleague recommended two men. Weddington says she proposed a deal: She would endorse the male candidates if he backed her woman. “He agreed, reluctantly,” she recalls. But then weeks went by. “I just felt he was holding up my nomination because he didn’t really want her appointed. I may be right, I may be wrong. But you just get a feeling in your gut.” Finally she stopped waiting.

“I went to Carter and I said, I have this feeling he might be holding things up, and I want to leak that she’ll get the appointment,” she says. A little pressure could break the logjam. “The Carter White House didn’t leak—it wasn’t like the Trump White House. But Carter said, OK. So I leaked it.”

The nominee was Ruth Bader Ginsburg.

Wendy Naugle is Glamour's executive editor.