M. Charles Bakst: Abortion: Roe Lawyer Presses On

Sarah Weddington says she didn't have a clue.

The lawyer who argued and won the historic Roe v. Wade abortion rights case says she couldn't have imagined that, decades after the 7-to-2 Supreme Court ruling, the battle would still rage and the victory be so imperiled.

"I never thought that 33 years later we would be at the brink of losing the right of women to make their own choices," she told me last week after speaking at a Providence fundraiser luncheon for congressional candidate Jennifer Lawless.

Indeed, Weddington told the crowd at The Hi-Hat, "We all ought to be screaming."

The "pro-choice" Lawless seeks to oust the "pro-life" Rep. Jim Langevin in the 2nd Congressional District Democratic primary.

Weddington was only 27 when the Roe decision came down on Jan. 22, 1973. She was a freshman Texas legislator. Later, she would work in President Jimmy Carter's administration.

This icon of the abortion rights movement, a Methodist, recently turned 61. She no longer practices law but does teach part-time at the University of Texas, has had breast cancer, is active in many organizations, and, you might say, gets around, often by air. She's from Austin, but she reports, "Sometimes when people say, Where do you live? I say, American or Delta."

I especially wanted to meet Weddington because of the passage of a new South Dakota law that would ban abortion there except when necessary to save the life of the mother. This is the same kind of law Texas had pre-Roe. South Dakota's Republican legislature passed the bill and its GOP governor, Mike Rounds, signed it in the hope of winning a reversal of the 1973 court ruling.

The South Dakota development is a scary indicator of the strength of the nationwide antiabortion movement. And it has divided abortion foes. Some think it goes too far or in any event is unwise strategy because, even with the arrival of John Roberts and Samuel Alito, it is believed that there are still at least five Supreme Court justices who would uphold Roe.

But, of course, it could take so long for the law to wind its way through the legal system that the makeup of the high court could change before the case lands there.

Even Republican Governor Carcieri, Rhode Island's foremost abortion opponent, thinks the South Dakota law, which is to take effect July 1, is too restrictive.

Yes, he knows Rounds and calls him "very level-headed, a typical Midwesterner, a solid family man."

But Carcieri says he'd prefer a bill that would allow abortions in the case of rape or incest as well as to save the life of the woman, the same kinds of exceptions Langevin repeatedly has said he favors.

Carcieri says he has not focused on a frontal assault on Roe. "It's settled law," he says, echoing a phrase Roberts has used. But Carcieri also says Roe was wrong. "From a societal standpoint, the notion that we can just dispose of unborn children is not a good message to send," he says.

His preferred way of fighting Roe is through intermediate steps, such as a ban on certain late-term abortions. Congress has passed such a law and the court has agreed to review it.

On Tuesday, Weddington told the Lawless audience that she thinks abortion foes will win that case and Congress will then be emboldened to enact more abortion restrictions.

She declared, "It should be a woman's right to make her most important decision, the one that controls her employment, education, family, family size, psychological well-being, physical well-being. . . . And for us to be able to do that we have to change the Congress."

Which is where Lawless would come in. Of course, she's an underdog against Langevin, but Weddington told me that taking up the Roe case had been an iffy thing, too. "Sometimes I think you just have to try, you just have to do everything you can, and I think that's what she's doing," Weddington said of the 31-year-old Lawless, a Brown University political scientist.

The South Dakota situation and the fights over confirmation of Roberts and Alito have heightened public awareness of the risk to reproduction rights, Weddington said. "And so what you would hope is that people would be so aware of that and that her opponent has voted against those rights every time he had a chance."

Of course, as Weddington herself noted elsewhere in the interview, some people simply can't believe that abortion rights are endangered.

And it goes without saying that most voters don't vote on the basis of abortion anyway.

In an interview, I asked Weddington if she thought when the Roe decision came out in 1973 that the abortion fight was over, or if she realized immediately the tremendous and enduring backlash it would touch off. She said her chief reaction was that the victory was in hand. She thought, "We'll have to work hard to be sure services are accessible. It's going to be a low-grade fever. We're still going to have to keep working on it. We can't just totally abandon it." But she did not think then that the whole thing might be in danger of coming apart.

In fact, even though Roe remains the law of the land, state restrictions and harassment of doctors have made abortions very hard to get in many places.

I wondered what Weddington thinks of abortion opponents. "They have been dedicated," she said. "They certainly have worked hard. They've got a lot more money than we do. And I just hope they don't win."

It is striking to think that Weddington could have scored such a historic legal breakthrough, only to live long enough, perhaps, to see it taken away. "I've thought about that," she said.

She added, "What I'm sure of is that people cherish having the right to make their own decisions. I think if it's overturned there will be a tsunami of public response. Because the problem right now is people just don't believe that could possibly happen. So it may be there will be another case, another election, after they overturn Roe v. Wade, but it's not going to stay that way. There are too many people who've known what it was like to have their own decisions. They are not going to let government take it away on a long-term basis."

If the Supreme Court overturns Roe, individual states presumably then would be completely on their own to deal with the subject. At least that is the conventional thought. Weddington's worry is that Congress would step in and press ahead with new prohibitions.

There is a touch of irony in the air as Weddington discusses Roe. In 1995, Norma McCorvey, the lead plaintiff who brought the class action suit under the legal pseudonym of Jane Roe, underwent a religious and philosophical conversion and became a celebrated antiabortion activist.

"She had had a very up-and-down life," Weddington says. McCorvey spent time in reform school, suffered from alcohol and drug problems, and more. "I've always been very sympathetic to her," Weddington says. The two women are not in touch, and Weddington obviously feels no remorse over the court case.

The baby girl born of the pregnancy McCorvey had when the case was first brought was put up for adoption.

(The "Wade" in Roe v. Wade was Dallas County District Attorney Henry Wade.)

In a way, Roe v. Wade seems like something from the mists of time. Indeed, Weddington dazzled the Lawless crowd by talking about a button she was wearing on an airplane a few years ago. You may remember these buttons yourself: she says they sprang up decades before as a way of protesting back-alley or coat-hanger abortions and saying that abortion should be legal and safe. The buttons show a hanger with a red slash through it.

Weddington says a flight attendant kept looking at the button, going away, and coming back and looking again. Finally, the flummoxed woman asked her, "What do you have against coat hangers?"

This column, written by M. Charles Bakst, appeared on March 19, 2006, in the Providence Journal.