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.