This article originally appeared in the February 5, 1973 issue.
It is not easy to get an appealed case as far as the Supreme Court of the United States; the Court does not concern itself with bagatelles. It is even rarer—probably unprecedented—for litigants to carry their appeals to the Court anonymously. Yet, two women, designated Jane Roe and Mary Doe, residents of Texas and Georgia, respectively, did just that—and won their cases. The reason for the anonymity was that they wanted abortions, disallowed by the laws of their states. Mary, 22 years old, eleven weeks pregnant with her fourth child when she brought the action, was married. Jane, age not given in the news reports, was unmarried. Now that they have prevailed in a matter of enormous religious, ethical and social importance, they may choose to reveal their identities, but their right to privacy in that respect, as well as their right not to bear children, has been upheld by the Court. They, and the seven Justices who voted in their favor, have performed a service of incalculable importance for American womanhood.
As a fringe benefit, they have taught the country a lesson in the practical workings of democracy and to that degree strengthened our system of government. As recently as ten years ago, it was inconceivable that such a decision could have been handed down. What are the prerequisites for such a reversal of attitude at the highest judicial level? For one thing; there must be a special constituency, imbued with zeal, packing the force of reason, and pushing hard for a change in the law. Without an activist vanguard, the ancient concepts will not be questioned, much less critically examined. In the matter of abortion, Planned Parenthood, Women’s Lib, liberal gynecologists and other groups provided the motive power.
Then, the special constituency must have able and dedicated counsel who will painstakingly marshal not merely the law, but the facts of the situation to show the weaknesses in the accepted way of doing things, or not doing them. This branch of the law is far more exacting—and unrewarding in terms of money—than, for instance, bankruptcy law.
Perseverance is a sine qua non. Counsel must be prepared to lose the first, second, third rounds, and continue without flagging. They must tire the appellate judges until they begin reflecting and develop a sense of guilt about the mistakes they and their brethren have made and keep on repeating. It takes patience, tenacity, dogged persistence, as well as intellect and skill in the law. When these are brought to bear, circumstances may favor those hitherto unfavored. In the case of capital punishment, executions were blocked to such an extent that the accumulated backlog left the Supreme Court little choice but to declare the practice unconstitutional. The alternative would have been a legalized massacre.
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Before the courts can change, the mores must change. A new consciousness must emerge. It may take decades, generations. It may never appear at all; on the other hand, it can come with amazing speed when time, acting through men, has done its work. Some aspects of this process are mysterious, others can be discerned without much difficulty—for instance, exchange of experience from one generation to the next. Judges have sons and daughters, nephews and nieces, and are often informed of developments of which they do not formally take “judicial knowledge.”
In the abortion controversy, it became clear, also, that gross discrimination was involved: the rich had no problem, the poor did, and more particularly the black poor on welfare. Even more than health care generally, the right to abortion depended on the economic status of those who desired it. Often, also, a progressive cause benefits for dubious reasons as well as ethically acceptable ones—might not the increasing tax burden of the “bums on welfare” be kept in check if their reproduction could be checked? This may have been a factor in the passage by the New York State legislature of a liberal abortion law, which has been generally successful. The legislature was moved by many of the same forces that moved the Supreme Court. Because the Catholic Church was so vehemently opposed to abortion, it took a certain amount of courage for the Assemblymen and Senators to pass a liberal law and for Governor Rockefeller to resist attempts to repeal it.
The medical inputs are those of any technology—practice develops a body of specialists and improved techniques. New York City Health Department statistics show that complications of any kind—a headache rated as a complication—dropped from 4.6 per thousand the first year to 3.0 the second. On the average, abortion is now safer than childbirth. Both the voluntary and proprietary abortion clinics in New York are on a par with the best hospital practice, and the possibility of a reversion to back-alley abortion is so revolting as to border on the inconceivable.
The religious aspect remains unchanged by the Supreme Court decision. Those who wish to have children, a few or many, can still have them. They are free to try to convince their fellow citizens that the “right to life” is indivisible and paramount. But those who wish the Catholic Church well can only be dismayed by the insistence of the bishops, an exclusively male, celibate sodality, on a doctrine which almost half of Catholic women repudiate. A prime reason for the alienation of many formerly practicing Catholics is the opposition of the hierarchy to both contraception and abortion.
The Supreme Court decision does not go all the way. There will be renewed efforts to circumvent it. But it is a rebuke to President Nixon’s letter of May 1972 to Cardinal Cooke, flatly opposing “liberalized abortion policies,” and a salutary reassertion of the independence of the Supreme Court, in that three of the four Justices appointed by Mr. Nixon voted with the majority.
