"I'll never forget January 22, 1973," said Dr. Sarah Weddington, referring to the day she received a call from a New York Times reporter informing her that her first contested court case as a lawyer, argued the year before, had been decided in her favor. Fresh out of the University of Texas School of Law, she had filed a case hoping to add to "this building pyramid of cases challenging the antiabortion statutes."
She did not expect that the path she had embarked on would take her to the Supreme Court at the age of 26, or that her case, Roe v. Wade, would ultimately be the one to decide the issue. More than thirty-five years later, it was the only Supreme Court decision that antiabortion vice presidential candidate Sarah Palin was able to recall in her infamous interview with Katie Couric.
Weddington is now a professor at the University of Texas and travels the country speaking about leadership and women's rights. In 1993, she wrote A Question of Choice , a book about her experience with the Roe v. Wade case. I spoke with her recently about what's at stake this election day.
If John McCain is elected and is able to put together a Supreme Court of his choosing, how hard would it be for the Court to overturn Roe v. Wade?
If McCain were able to make those appointments, he'd still have to get them confirmed by the Senate. That's one reason we are working so hard to elect more senators who support Roe v. Wade and the principle behind that decision. It could be that you would just have a situation where, even if McCain made appointments, they wouldn't get through the Senate. Bill Clinton had a period while he was president where he couldn't get his Court appointments through the Senate.
Senator Patrick Leahy of Vermont really does respect Roe v. Wade, and I'm sure he would, as chairman of the Senate Judiciary Committee, have a lot to say about who gets confirmed. And I must admit, as I read the papers, listen to the news, talk to people, look at the polls, I do not believe it is going to be McCain who will be making those appointments.
The second part is that there has to be a case that would get to the Supreme Court in which they could appropriately overturn or radically diminish the privacy principle. There are a number of states that currently are getting ready to vote on measures whose supporters say would provide an appropriate challenge to present to the Supreme Court to overturn Roe v. Wade.
Those are Colorado, South Dakota and California.
California is more of a minor issue: what kind of consent would a minor have to have in order to be able to have an abortion? But South Dakota is a clear case of a challenge. Colorado is, too, but South Dakota is one where they clearly said, "We want to overturn Roe. We are trying to give the Court a way to do that."
You also had one bill pass several years ago in the Congress, which said a certain form of abortion [dilation and extraction, or "partial-birth," abortions] could not be used. It was the first time you had Congress passing a bill trying to decrease the kinds of procedures that could be used. So you could have members of Congress immediately introducing legislation that could be much broader in being opposed to Roe v. Wade.
If the Democrats are able to win the kind of vote I think they are going to in Congress, that's not likely to succeed. But in some of the states, where opponents have a majority, it would just be a process of getting an appropriate measure passed and then on up to the Supreme Court.
How difficult would it be to challenge the South Dakota ban, if it passes?
No doubt it will be challenged. I don't know who, but I bet there's some lawyer staying up late nights writing the challenge right now. Because clearly it's going to be an important election, an important decision, and I think, no question, there will be a case that comes out of it.
This year the Democratic Party reached out to prolife Democrats more than it has in the past. What did you think of language inserted into its 2008 platform that says Democrats "strongly support a woman's decision to have a child by ensuring access to and availability of programs for pre- and postnatal healthcare, parenting skills, income support and caring adoption programs"?
It wasn't anything I was excited about. On the other hand, what we've always said, and I've always really agreed with, is that it ought to be up to the woman to make her own choice--the choice to continue the pregnancy, the choice to terminate, the choice to put the child up for adoption, the choice to continue and keep the child. So I don't disagree with the language, and I understand the Obama folks really wanted that in. I agree with the basic underlying theory that the woman should be able to make her choice and should have the assistance to be able to do that.
Also, I think it does underline the increased attention to healthcare, which Obama has made a central part of his campaign. I don't think McCain would help anybody who was pregnant and trying to decide whether to have medical care to continue the pregnancy or help with the child.
In your book, you wrote, "The final outcome of the story of legal abortion in America will be written in the future.... It is likely to be a political outcome."
Right, I wrote that when Bill Clinton was running and I was so concerned about who was going to be appointing those Supreme Court Justices.
Do you have any sense now of how close or how far we are to writing that final outcome and what you think it might be?
It's the closest we have ever been in terms of the Supreme Court Justices. Clearly. Even a one-vote change could make a huge difference. I do think that we are at a crisis time. The people who believe that it should be their decision if there is a pregnancy, their decision about whether a pregnancy should occur and what should be the result of that pregnancy--people who believe that that is their private right need to vote, and they need to vote for Barack Obama.
How long do you think it will be before we see a president who was born in a post-Roe United States?
You know, I haven't thought about it, so I don't know the answer to that question. We are in a time when more and more elected officials were born after Roe v. Wade was argued. They come to believe that the decision to have an abortion ought to be a person's choice and they've had that choice the whole time.
But there is also a trend that I see sometimes in polls that say younger people sometimes take it too much for granted. Every once in a while, when I talk to younger women on college campuses, they say, "Oh, it's never going to happen. They're not going to overturn Roe. It's always been that way." That's when I start worrying. I think history does teach us some real lessons, and one of them is that we need a Supreme Court that is committed to the principle of privacy and of Roe v. Wade.