American History Tellers - Supreme Court Landmarks | Jane Roe | 7

Episode Date: December 2, 2020

In 1970, a 22-year-old woman in Texas named Norma McCorvey tried and failed to get an abortion from her doctor. Abortion was illegal in Texas, just as it was in most states. Women hoping to terminate their pregnancies had few options, and many resorted to risky back-alley procedures.McCorvey was soon introduced to a pair of young lawyers who hoped to go to court to challenge the Texas law banning abortion. Before long, McCorvey became the plaintiff known only as “Jane Roe.”Her case eventually made its way to the Supreme Court, where the Justices would rule on whether the constitutional right to privacy applied to abortion. The Court’s landmark ruling changed the lives of American women, and unleashed intense controversy, dividing the nation for decades to come.Listen ad free with Wondery+. Join Wondery+ for exclusives, binges, early access, and ad free listening. Available in the Wondery App https://wondery.app.link/historytellers.Support us by supporting our sponsors!See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Wondery Plus subscribers can binge new seasons of American History Tellers early and ad-free right now. Join Wondery Plus in the Wondery app or on Apple Podcasts. Imagine you're in Dallas, Texas in September 1969. You're sitting in the office of your OBGYN, who has just confirmed your suspicions. You are pregnant. You stare at the cold, sterile examining room in a daze until the doctor snaps you out of it. Now, I want to see you again next month for a checkup. The nurse will show you out.

The doctor glances at his watch and walks toward the door to leave. Next month? With that, it suddenly becomes real. You start to take deep, gasping breaths, but you can't seem to get enough air. It feels like a thousand pounds of pressure is weighing on your chest. The doctor closes the door and turns back to you. You feel a hand on your shoulder, guiding you down toward the floor. Here, here, put your head down between your knees. You take several deep, shuddering breaths. Gradually, your heartbeat slows. There. Better? Now, what seems to be the problem? I can't

take care of a baby. I'm only 19. What about the father? You shake your head. I don't know how to reach him. Your mother? Grandmother? I'm on my own. I see. There are homes for unwed mothers, and there's always adoption. You try to imagine your boss's face if you showed up at the diner with a baby on your hip, or even pregnant. The last waitress who got pregnant was fired.

You're already behind on your rent. Your eyes start to fill with tears. I can't do this, please. Isn't there anything else? The doctor purses his lips. I hope I don't need to remind you that abortions are illegal in this state. What about somewhere else? I could take a bus. If you insist.

I suppose Colorado or California would be the closest option. But residency requirements would make it difficult for you to qualify. Your heart sinks. You could never save enough tips to afford a trip that far, even if you could qualify. What about Mexico? I heard of women going just across the border. A Mexican clinic? Most of those places are unlicensed.

I'm going to discourage you from taking that risk. You feel the panic rising in your chest again. Can't you give me the name of someone in Texas? You don't even have to say it out loud. Just write it on a slip of paper. No, I will do no such thing. I do not recommend illegal abortionists to my patients. I could lose my license.

But trust me, I've seen plenty of girls just like you. I do not recommend illegal abortionists to my patients. I could lose my license. But trust me, I've seen plenty of girls just like you. They don't know how they'll manage motherhood, and then they figure out a way. This will work out for the best. I'm sure of it. The doctor smiles, stands, and then leaves you to wrestle with your uncertainty. You've heard stories of women taking matters into their own hands, but you're terrified to try something like that yourself.

What if it meant you could never have children, but you also know you can't keep this baby? Never in your life have you felt so trapped. With Audible, there's more to imagine when you listen. Whether you listen to stories, motivation, expert advice, any genre you love, you can be inspired to imagine new worlds, new possibilities, new ways of thinking. And Audible makes it easy to be inspired and entertained as a part of your everyday routine without needing to set aside extra time. As an Audible member, you choose one title

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Tony Hawk. Oh my God. Buy It Now. Stream free on Freeview and Prime Video. From Wondery, I'm Lindsey Graham, and this is American History Tellers. Our history, your story. In the 1960s, abortion was illegal in Texas, except in cases where the mother's life was in danger. It was the same in most other states. And without access to legal abortion, many desperate women turned to risky procedures or tried to induce abortions themselves.

In 1970, an anonymous plaintiff known as Jane Roe challenged the Texas law banning abortion, mounting a legal fight that made it all the way to the Supreme Court. The case that became known as Roe v. Wade unleashed furious debate throughout American life. Rarely in its history had the court been faced with a case that aroused such strong emotions. Roe v. Wade involved medicine, religion, ethics, and the most fundamental rights to liberty and privacy. But what began as one woman's fight for control over her pregnancy led to a landmark court ruling and sparked a battle that would rage for decades to come. This is Episode 7, Jane Doe. In the early 1960s, abortion was still a taboo topic for many Americans, and it remained firmly

on the sidelines of political debate. But over the course of the decade, the feminist movement and a new openness about sex prompted a shift in the American public. Women were breaking barriers, gaining new education and employment opportunities. And by the late 1960s, nearly 40% of women worked outside the home. As more women pursued careers, they demanded greater personal freedom and control over reproduction, including access to birth control and safe legal abortions. In 1965, birth control became legal nationwide when the Supreme Court struck down a state law that criminalized the use of contraceptives,

even among married couples. With Griswold v. Connecticut, the court proclaimed a right to privacy that would set the stage for Roe v. Wade. Meanwhile, highly publicized cases of birth defects had also drawn attention to the need to prioritize women and family health. In the late 1950s, the drug thalidomide was marketed to pregnant women as a treatment for morning sickness, but it caused severe deformities in

more than 10,000 babies worldwide before it was pulled from the market. A few years later, a rubella epidemic swept America, resulting in 20,000 babies born with birth defects. Gradually, Americans became more willing to talk openly about abortion. But even as abortion became more widely accepted, women seeking to terminate their pregnancies still had few options. Nearly all states banned or severely restricted abortion. There were just a handful of exceptions in cases of rape, incest, or when the mother's life was at stake. And without access to safe legal procedures, experts estimated that each year hundreds of thousands of women resorted to illegal abortions, and hundreds more died from

complications. The toll was especially high for women of color, who often lacked access to quality health care. In response, a growing number of health care providers, women's rights advocates, and lawyers began demanding reform to expand access to safe, legal abortions. Over the course of the 1960s, they launched battles to overturn abortion bans in courtrooms and state legislatures across the country. Doctors who had faced criminal prosecution for performing abortions led many of these efforts. And slowly, states began to break down legal barriers to abortion. By 1970, New York, Washington, Alaska, and Hawaii had legalized the practice.

Thirteen other states had instituted limited reforms, but 33 states still outlawed nearly all abortions. Reformers and feminist lawyers were determined to push for more widespread changes. They wanted to put the issue before the Supreme Court, but to get there, they first needed to challenge abortion laws at the state level. In 1970, a pair of lawyers fresh out of law school brought the fight to Texas. The woman who would eventually become Jane Roe was 22-year-old Norma McCorvey. Petite and curly-haired, McCorvey had led a difficult life. She was a high school dropout who had been raped repeatedly by a relative at a young age. She'd become a teenage runaway and wound up in a reform school.

She wrestled with alcoholism, drug addiction, and depression. By the fall of 1969, McCorvey had already given up two babies for adoption. She was working at a traveling circus when she discovered she was pregnant for a third time. McCorvey had few resources to support a child and went to see her doctor in Dallas, seeking information about getting an abortion. But under an 1854 Texas law, abortion was a criminal offense, except when the mother's life was in danger. Accordingly, the doctor refused to help her. McCorvey barely had enough money to get by, let alone travel to another state, or go to an illegal abortion clinic in

Texas for a procedure that could cost hundreds of dollars and put her life at risk. So by January 1970, McCorvey was running out of time. She saw another doctor, who introduced her to a lawyer who handled adoptions. As a lawyer listened to her story, he was struck by an idea. He told McCorvey that he had a friend who might be interested in speaking with her.

His friend was a young activist, another lawyer named Linda Coffey. She had recently partnered with a fellow lawyer named Sarah Weddington to challenge the Texas abortion law. But first, they needed a pregnant woman to be their plaintiff. Imagine it's January 1970, and you're in a pizza parlor in Dallas, Texas. You and your law school classmate Linda are sitting across from Norma McCorvey,

the woman you hope will help you bring the biggest case of your career to federal court. You've ordered pizza and beer and made small talk, but now is the time to talk to McCorvey and why you've asked her here to meet you. So, tell me, Norma, you're about three months along now? Norma nods and stares down at the black and white checkered floor. Yes, I don't want to go through with it. I haven't had an easy life. I've never even finished the ninth grade.

And I know I'll lose my waitressing job if the pregnancy continues. I can barely support myself, much less a child. Yeah, I'm so sorry. It's not fair that so many women lose their jobs when they become pregnant. That's one of the reasons we're fighting to change things. Our ultimate goal is to make abortion a safe medical procedure nationwide, to give all women the right to choose. I don't have much of a choice.

I found this clinic in Dallas, but to tell you the truth, I didn't like the looks of it, and I don't have the money to travel to another state. You nod. It's a story you've heard more times than you can count. You know, there are a lot of people out there who want to change the law here in Texas. That's why Linda and I are here. We want to sue the state to strike down its abortion law. We want to prove that it violates the U.S. Constitution. But we need a plaintiff,

and one who's still pregnant. Norma takes a sip of beer as she considers what you've said. Would it make a difference if I were raped? You and Linda exchange glances. Do you have a police report? Any witnesses who could prove what occurred? Norma shrugs. Well, I'm afraid it wouldn't make a difference in any case. The Texas law has no exceptions for rape.

Besides, we want a decision that establishes that abortion is covered by the right of privacy, regardless of how a woman got pregnant. And what would being a plaintiff involve? Well, first of all, it would require very little of your time. You'll sign a one-page affidavit explaining your situation. You'll never have to answer questions from the lawyers on the other side or attend court hearings. It won't cost you anything either. Linda and I are donating our time. We're covering the expenses.

And lastly, you can stay anonymous. So no one would know it's me. No, no one. Not unless you choose to tell them. We'll use a pseudonym. But there is just one thing. In the meantime, we won't be helping you obtain an illegal abortion. We need our plaintiff to be pregnant at the time we file. The judge will decide whether you're allowed to have an abortion. If he agrees, it will set a precedent for countless Texas women

who will come after you. Could change abortion laws in the state forever. Norma finishes her beer, considering the matter. So? What do you say? Will you be our plaintiff? No need to answer now. You can take some time to think it over. Norma nods, her jaw clenched. Not a single woman should ever have to feel the way I feel right now.

You recognize a woman who's made up her mind, and you smile at Linda, thrilled that you've just found the plaintiff for your case. But you know it's just the first step. This won't be easy. If you lose, it won't just be Norma's abortion in jeopardy. It will be unlikely that any woman who comes after her will ever be able to challenge the state law. When Sarah Weddington and Linda Coffey first met Norma McCorvey, they were both 26 years old and just three years out of law school. They'd been only a handful of women in their graduating class at the University of Texas. At first glance, Weddington seemed like an unlikely abortion activist.

She was the daughter of a Methodist minister, and she had headed her high school chapter of the Future Homemakers of America. But she knew firsthand the difficulties and dangers women endured trying to obtain abortions. During her final year of law school, she'd become pregnant and traveled to Mexico to receive an abortion. The procedure went smoothly. Weddington described herself as one of the lucky ones, but the experience was harrowing. After law school, Weddington volunteered for a group that helped women access abortions. By 1969, the group was planning to launch a major campaign to challenge the restrictive Texas abortion law. Her fellow volunteers encouraged her to file a lawsuit challenging the law's constitutionality in federal court with the hope that the case would eventually

end up in the Supreme Court. Weddington agreed, and she asked her friend from law school, Linda Coffey, to be her co-counsel. Coffey had just successfully challenged another Texas law that criminalized sodomy and had often been used to persecute same-sex couples. She knew her way around the federal court system and key questions of privacy rights. And in Norma McCorvey, Weddington and Coffey saw an ideal plaintiff. Wealthy, connected women could afford to travel and pay for abortion procedures. McCorvey was poor and uneducated. She couldn't get a safe abortion unless the laws were overturned. She would serve as a stand-in for all the women who would benefit most from abortion being legalized.

McCorvey later reflected on her decision to join the lawsuit, remembering, I know how I felt when I found out I was pregnant, and I wasn't going to let another woman feel that way. Cheap, dirty, and no good. The three women decided that to protect McCorvey's privacy from media attention, they would use a pseudonym. They settled on the name Jane Roe. In February, Weddington and Coffey dug into research and set about building their case. They quickly decided that Jane Roe wouldn't be their only plaintiff. To increase their chances of at least one of their cases succeeding, they combined McCorvey's case with a second complaint on behalf of a married couple, Marsha and David King, who would take on the pseudonyms John and

Mary Doe. Unlike McCorvey, Marsha King wasn't pregnant. Due to a neurological condition, King's doctor had advised her against getting pregnant or using birth control pills. The lawyers planned to argue that by blocking King's ability to terminate an unwanted and potentially high-risk pregnancy, the abortion law impinged on the King's right to marital privacy and marital happiness. On March 3, 1970, Linda Coffey walked up the steps of the federal courthouse in Dallas and filed both complaints against Henry Wade, the county's district attorney. She paid the $30 filing fee out of her own pocket. The complaints argued that the Texas abortion statute was unconstitutional

and called for an injunction to stop its enforcement. Coffey and Weddington were not yet sure which legal arguments would work best at the court. So they cast a wide net, saying that the anti-abortion law violated parts of the Constitution's First, Fourth, Fifth, Eighth, and Fourteenth Amendments. They also highlighted the Ninth Amendment, which protects rights not specified in the Constitution. McCorvey's complaint was based on the argument that the Texas law infringed on the fundamental right of all women to choose whether to bear children. The chief judge of the U.S. Court of Appeals for the Fifth Circuit decided to combine

the Roe and Doe lawsuits into a single case. The trial for what would become known simply as Roe v. Wade was set for May 22nd. Over the next two months, Coffey and Weddington undertook exhaustive preparations. They knew that there was more at stake than just the fate of Norma McCorvey's pregnancy. They were fighting to overturn a law that had been on the books for over a century. If they succeeded, their efforts would lead to a seismic shift in reproductive rights for all American women. Each episode, the entrepreneurs get 90 seconds to pitch to an audience of potential customers. This is match point, baby. If the audience like the product, pitch them in front of our panel of experts.

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of wealth and success was a litany of bad investments, mounting debt, and multi-million dollar fraud. Hi, I'm Lindsey Graham, the host of Wondery Show Business Movers. We tell the true stories of business leaders who risked it all, the critical moments that defined their journey, and the ideas that transformed the way we live our lives. In our latest series, a young refugee fleeing the Nazis arrives in Britain determined to make something of his life. Taking the name Robert Maxwell, he builds a publishing and newspaper empire that spans the globe.

But ambition eventually curdles into desperation, and Robert's determination to succeed turns into a willingness to do anything to get ahead. Follow Business Movers wherever you get your podcasts. You can listen ad-free on the Amazon Music or Wondery app. On May 22, 1970, the trial of Roe v. Wade began in the Dallas Federal Courthouse. Linda Coffey and Sarah Weddington braced themselves to face anti-abortion protesters, but they were surprised instead to discover a handful of abortion rights supporters gathered

on the courthouse steps. Journalists and women packed the courtroom as proceedings began. Each side had 30 minutes to make their case before a panel of three judges. Linda Coffey had never argued a case this big before, and Sarah Weddington had never appeared before a federal judge at all. Facing off against this pair were attorneys Jay Floyd and John Toll, who were arguing the case on behalf of Dallas County's district attorney. Toll and Floyd were certain they would win against the rookie lawyers. Though Floyd began with no strong feelings one way or the other, his work on the case would soon make him strongly anti-abortion. Coffey spoke first, quickly moving from technical issues to her core argument, that the Texas abortion law was

unconstitutional. The judges asked her about the Ninth Amendment, which had provided the basis for the reproductive privacy ruling in Griswold v. Connecticut five years earlier. The Ninth Amendment functions as a constitutional safety net, stating that the people have rights beyond those listed in the Constitution. Coffey argued that it covered a woman's right to an abortion. Coffey had clerked for one of the judges on the bench, Sarah Hughes, and seeing her former boss gave her confidence. Weddington rose to speak next. A wink and a smile from Judge Hughes calmed her nerves. She argued that the state had no compelling interest in regulating abortion beyond making sure that it be done by competent,

licensed medical professionals. Soon, coffee's time was up, and the lawyers representing WAVE spoke next. Jay Floyd asked the judges to dismiss the case on the grounds that Roe must be now far too along in her pregnancy to have an abortion. The judges rejected this argument. Next, Floyd argued that the state had an interest in banning abortion to protect unborn fetuses. John Toll spoke next, concluding his argument by declaring, the right of the child to life is superior to that of a woman's right to privacy. With that, both sides rested,

having drawn lines that would define the legal battle and the broader abortion debate to come. The lawyers waited a month for the panel to announce their ruling. In a unanimous decision in June, the three judges affirmed that the Texas law was unconstitutional. They declared it vague and overbroad and said it deprived women of their right to choose whether to have children, secured by the Ninth Amendment. But it was only a partial victory. The judges had declared the abortion law unconstitutional, but little changed in practice. The Dallas County District Attorney, Henry Wade, vowed to continue prosecuting abortion doctors, and the court refused to intervene. With so many doctors fearing the

threat of prosecution, Texas women still could not obtain legal abortions. The failure of the court to bring meaningful change on the ground meant that the case was a prime candidate for review by the U.S. Supreme Court. Coffey and Weddington decided to appeal the ruling. But the wheels of the justice system turned slowly, too slowly, to help Norma McCorby. By June 1970, she was still blocked from getting a safe legal abortion, despite the court's ruling. She would have to carry the baby to term. So whatever the case's outcome, it would no longer make a difference to her. It would be for the women who came after her.

That fall, Coffey and Weddington submitted petitions to the Supreme Court. But it wasn't until May 1971 that the court announced it would review Roe v. Wade alongside a Georgia abortion case, Doe v. Bolton. It set a court date for December 13th. Over the next few months, both sides went to work filing their briefs to the Supreme Court in advance of the hearing. Weddington and Coffey asked a number of prominent attorneys, politicians, academics, women's groups, and religious groups to prepare amicus briefs supporting their argument that a fetus does not have the rights of a person. The defense team, led by Jay Floyd, had supporters of its own,

and they were quickly coalescing into a growing anti-abortion movement. Imagine it's September 1971 in Austin, Texas. You're a lawyer and a volunteer with the National Right to Life Committee. For the past year, you've been actively lobbying legislators to oppose abortion reform. But you've never had an opportunity like this. You've just arrived at the office of Jay Floyd, the very man who will be defending the Texas abortion statute before the Supreme Court. You open the door and scan the room.

You can't even see the desk beneath the piles of papers and files. Floyd is leaning back in his chair, his tie loosened, his head buried in a law book. As he looks up, you notice the bags under his eyes. You're the lawyer with the right to life, people? Please, have a seat. And excuse this mess. I'm usually the color-coding type, but I'm juggling dozens of cases right now. Well, that's why I'm here. I've been collecting research and medical texts to help with your case. Oh, wonderful. Well, let's see what you have. Tell you the truth, personally, I'm non-committal about abortion, but we could use a stronger case, so I'll take whatever you got. You feel a pang of

disappointment. You hope the lawyer arguing the biggest abortion case in history would share your passion. You're a devout Catholic, and abortion goes against everything you believe in. If you could just make him understand the stakes. You place a stack of photos on Floyd's desk. Well, I'm recommending you include information about fetal development during pregnancy. These photos deserve to be brought to the attention of the Supreme Court. Floyd raises his eyebrows, then begins rifling through the photos. Each one shows a fetus at a different stage of development. Each one includes tiny fingers and tiny toes. Well, looking at these, it's hard to say that the fetus isn't a separate and distinct being from the mother. Well, that's just it.

The fetus is a human being with its own constitutional rights. Floyd starts making notes on the corner of a legal pad. You know, the other side is planning to make this about the mother's right to privacy. That's why you need to make it clear that the right to life of an unborn child trumps that. My partner and I have been working with a doctor from the Mayo Clinic. We're prepared to provide all the backing you need. Well, you might have something here. And to tell you the truth, I'm behind where I should be by now.

Why don't you and your people prepare an amicus brief for us? I would be honored. I'm telling you, this is really going to complete the picture for the court. You smile, proud that you're making a difference, helping to make sure abortion never becomes legalized nationwide. As abortion reform gained momentum in state legislatures and courtrooms in the late 1960s and early 1970s, a passionate movement mobilized to oppose it. The National Right to Life Committee was just one organization that grew from the outcry against legal abortion. As the trial for Roe v. Wade loomed, its volunteers helped gather evidence to bolster the defense team's case. In December, the Supreme Court

prepared to hear oral arguments for Roe v. Wade. But it was short two justices. Hugo Black and John Harlan had both retired in September after being diagnosed with cancer. Only seven justices sat on the bench, led by Warren Berger, who had replaced Earl Warren as Chief Justice. Under Warren, the court had a majority that, more often than not, took a liberal view in its rulings. But now, the political pendulum had swung the other way. President Nixon had already appointed two conservative justices, Berger and Henry Blackmun. That fall, he had nominated two more to fill the empty seats, Lewis Powell and William Rehnquist. They would both take their seats in January. So as Coffey and

Weddington prepared for their first appearance before the highest court in the land, they knew their task would be even tougher if the case were delayed and Nixon's new nominees could weigh in. So they were relieved when the court went ahead with hearing the case, even without the full bench of nine. As before, each side was given 30 minutes to present their case and answer the justices' questions. Weddington had been practicing her argument before a mock court, and her voice was steady as she faced the seven male justices. She spoke of the harmful effects of unwanted pregnancy on a woman's well-being. Justice Potter Stewart interrupted her, telling her to get to the relevant constitutional issues. Weddington explained that they brought the suit on the basis of the Ninth Amendment,

the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and a variety of others, she said. Stewart interrupted her, asking dryly, and anything else that might be applicable. As the courtroom erupted in laughter, Weddington joined in. It was true. She had thrown in every argument she could think of. The remainder of the questioning focused on Weddington joined in. It was true. She had thrown in every argument she could think of. The remainder of the questioning focused on Weddington's argument that constitutional rights begin at the moment of birth. The judges asked if any state confers legal rights to the

unborn fetus, and she affirmed that none did. Weddington continued, arguing that one of the purposes of the Constitution was to guarantee to the individual the right to determine the course of their own lives. But the justices seemed unconvinced that she had articulated a solid constitutional case for abortion. Jay Floyd stood next to argue the case for Texas. He looked over at Weddington and Coffey and said, It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word.

Not a single person laughed. As Chief Justice Berger glared down at him, Floyd faltered. He proceeded to argue that the case was not valid because Roe was no longer pregnant. Justice Stewart rejected this argument, reminding him that this was now a class action lawsuit applying to all unmarried pregnant women in Texas. As the questioning continued, Floyd got tangled up answering questions about the state's interest in abortion and the point at which life begins. Finally, he admitted weekly, Mr. Justice, there are unanswerable questions in this field. By the time the court session concluded, the justices felt that neither side had presented a compelling constitutional path for their ruling. Three days later, they gathered in a conference room to discuss the cases,

but they failed to nail down a decision. The attorneys for Roe v. Wade would have to wait. The Supreme Court sent notice that the case would be re-argued in 1972 with a full nine-member court. Justice Blackmun had been tasked with writing the ruling opinion, and the delay would also give him more time to prepare. Blackmun had grown up alongside Chief Justice Berger in St. Paul, Minnesota, where he'd spent nine years as the in-house counsel for the Mayo Clinic. His familiarity with the medical profession made him seem like the proper candidate to write the opinion. Although he had not declared a position on abortion, he was no stranger to the difficulties caused by unwanted pregnancy. His daughter, Sally, had become pregnant during

college. She dropped out and married her boyfriend, only to suffer a miscarriage. In July, Blackman traveled to Minnesota and spent two weeks diving into exhaustive medical and historical research in the Mayo Clinic Library. He traced the history of abortion all the way back to antiquity and discovered that ancient Greek doctors commonly performed abortions. He was surprised to learn that there was little legal tradition for the criminalization of abortion, something that had only started in the 19th century.

On October 11, 1972, the Supreme Court heard a second round of arguments for Roe v. Wade. This time, the justices were joined by Lewis Powell and William Rehnquist, Nixon appointees who had been confirmed in January. Weddington once again argued for Roe. Prompted by the disappointment in her first round of arguments before the court, she had spent months honing her case. She was also running for a seat in the Texas state legislature. Now, she stood before the bench with a newfound confidence and spoke largely without interruption.

Laying out the constitutional grounds for her argument, Weddington cited the great body of cases decided by the Supreme Court around marriage, sex, contraception, and childbearing, which left decisions up to the individual. She concluded by borrowing a line from a ruling opinion by sitting Justice William Brennan, declaring, If the right of privacy is to mean anything, it is the right of the individual to make determinations for themselves. After Jay Floyd's rocky performance during the first oral

arguments, the state of Texas had replaced him with his boss, Assistant Attorney General Robert Flowers. Flowers now focused the state's defense on two central points. First, that from the moment of conception, a fetus was a person entitled to protection from the state. And second, regulating abortion should be left up to the Texas state legislature. But Flowers had been so certain about his argument that he did a little prep work, and the justices poked holes in his reasoning. Justice Potter Stewart asked, Do you know of any case, anywhere, that's held that an unborn fetus is a person within the meaning of the 14th Amendment? No, sir, Flowers admitted. We can only go back to what the framers

of our Constitution had in mind. Stewart reminded Flowers that the framers did not write the 14th Amendment, telling him that came much later. In the end, Flowers was unable to cite either legal or medical criteria that clearly established that a fetus was a person. Weddington later recalled, I left the courtroom with the sense that the justices had already decided the cases, but were not yet willing to tell us their decision. But the final decision for Roe v. Wade would still be a long way off. The justices knew that with such a consequential case, the decision needed to stand on firm ground. But they

couldn't agree on the details. They weren't yet ready to put together a ruling opinion or take a final vote. The ultimate fate of Roe v. Wade and the future of millions of American women still hung in the balance. This is the emergency broadcast system. A ballistic missile threat has been detected inbound to your area. Your phone buzzes and you look down to find this alert. What do you do next? Maybe you're at the grocery store.

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to the brink of extinction. Listen to the Pitcairn Trials exclusively on Wondery+. Join Wondery in the Wondery app, Apple Podcasts, or Spotify. On October 13th, two days after the second round of oral arguments for Roe v. Wade, the justices were still wrangling over the case. They met to discuss both sides and take a preliminary vote. Justice Blackmun had wrapped up his research into the medical and historical details of abortion. He was ready to render a decision. He circulated a draft of his opinion, urging his colleagues to strike down the Texas anti-abortion laws. The justices cast their

vote, which tallied six to three. Chief Justice Berger, William Rehnquist, and Byron White, all known for their conservative views, were in dissent. Lewis Powell, a Nixon nominee, surprised the rest when he voted in favor of striking down the abortion law. But it wasn't over yet. While Blackmun's opinion was rich in history, the justices told him it lacked a solid constitutional basis for the right to privacy. They also said it needed to be more explicit about just when an

abortion could be restricted during pregnancy. Blackmun spent the next few weeks revising his opinion. He went back to his medical research and proposed a framework dividing pregnancy into three trimesters. During the first trimester, he left decisions about abortion completely up to the women and her doctor. During the second trimester, the court would permit some regulation in the interest of protecting the mother's health. During the third trimester, when the fetus is usually considered viable outside the womb, states could ban abortion unless childbirth threatened the mother's life. Blackmun also shored up his opinion's constitutional footing. Citing a range of cases dealing with contraception, marriage, and child

bearing, he argued that privacy rights were covered under the 14th Amendment's concept of personal liberty. He declared that the zone of privacy was broad enough to encompass a woman's decision whether or not to terminate her pregnancy. He circulated his new draft in late December. By the second week of January 1973, the justices had accepted Blackmun's revisions. Brennan, Douglas, Marshall, Powell, and Stewart joined the majority opinion. White and Rehnquist had prepared their dissent. But Chief Justice Berger was dragging his feet. He announced he would join the majority, making the ruling 7-2, but he continued to delay, promising that he was working on his own concurrence.

Berger's stalling was deliberate. He was scheduled to administer the oath of office to Richard Nixon at his second inauguration on January 20th. He wanted to avoid embarrassing the president, who had publicly opposed abortion. So it was just two days later, on January 22nd, 1973, that the Supreme Court formally struck down the Texas abortion law, declaring it unconstitutional. The landmark ruling legalized abortion across the United States. In the final tally, three out of four Nixon appointees voted to legalize abortion. In his concurring opinion, Berger tempered his support for the ruling by announcing the court rejects any claim that the Constitution requires abortion on demand. Linda Coffey heard the news on the radio while she

was driving to work. Sarah Weddington found out in her office in Austin where she was serving as a newly elected Texas state representative. The young lawyers celebrated their victory over the phone. Weddington later reflected, we could not get over the fact that we, two young women lawyers not long out of law school, had contributed to winning a crucial Supreme Court decision that freed women from the fear of unwanted pregnancy. Norma McCorvey read the decision in the newspaper. She knew the case had little bearing on her own life.

By then, she had long since given birth to a baby girl who was immediately adopted. In a sign of the change of attitudes that the women's liberation movement had ushered in, the news media largely celebrated the ruling. The New York Times described it as a major contribution to the preservation of individual liberties. Abortion rights advocates were thrilled, with the president of Planned Parenthood calling the ruling wise and courageous. But those opposed to abortion were outraged.

The National Conference of Catholic Bishops branded the decision an unspeakable tragedy. The ruling would galvanize the anti-abortion movement. And over the next few years, millions joined the National Right to Life Committee and other affiliated groups to lobby Congress to pass laws to restrict abortion access. In his ruling, Justice Blackmun had acknowledged the court's awareness of the sensitive and emotional nature of the abortion controversy, and of the deep and seemingly absolute convictions that the subject inspires. Roe v. Wade had been decided, but the abortion debate was far from over. In fact, the ruling only inflamed passions. Abortion would remain a moral and legal battlefield for years to come.

Imagine it's September 1977 in McAllen, Texas. You're sitting at your kitchen table with your close friend, Rosie. She's just told you she's pregnant. Like you, Rosie's Mexican-American, the daughter of migrant farm workers. And like you, she's a college student and single mother. Oh, Rosie, I don't know what to say. Timing couldn't be worse. Rosie shrugs as you hand her a hot cup of coffee. You've never seen her look so defeated. It's just too much. I can't do this. I'm going to college to make a better life for Monique. I'm going to be a special ed teacher one day. That's my goal. That's what matters.

Your son is just a few years older than Rosie's baby daughter, Monique. She lives in the apartment next door. And you think of yourselves as a team, helping each other, manage busy schedules and a hectic life. Rosie, you will be a teacher. And I'm going to be a lawyer. We won't be cleaning houses forever. Rosie gives you a small smile. You know me, I'm an optimistic person, but I don't know how I'll care for another baby on top of school and work. So I've decided I think I need to get an

abortion. You nod, placing your hand on her arm. Okay. But I just want to make sure you see a real OB-GYN. You've heard the stories. I've already called my Medicaid caseworker. He says they won't pay for it. Some new law was passed a couple of months back. But don't worry. My friend from class gave me the number of a woman who will still do it. She's a midwife.

You're not thinking of doing some back alley procedure, are you? The going rate in an OB-GYN is more than $200. You know I can't afford that. But my friend assured me this woman knows what she's doing. No, no, no, there's got to be another way. What about your financial aid check? I can't use that. I still have two years left in school.

Then we'll have a fundraiser. We'll have a bake sale. I'm a great baker. We'll come up with the money. We'll come up with the money. Well, first of all, you're not a great baker. And secondly, there's no point. I'm going to the midwife. It's final. Please do not do this. No, no, no, no. Don't worry. It'll be fine. You'll see. But her grin, normally so infectious, doesn't quite meet her eyes.

You can't shake the feeling that something could go horribly wrong. The fierce debate around Roe v. Wade would rage long past 1973, and abortion access remained precarious for American women. Soon after the Supreme Court legalized abortion, new laws began cropping up at the state and federal level, stripping away abortion protection. In 1976, Congress passed the Hyde Amendment, banning federal funding for abortion through Medicaid.

Exceptions were later added for cases of rape, incest, or when the mother's life was at risk. In effect, the Hyde Amendment meant that many poor and minority women who relied on Medicaid for health care were unable to seek abortions. The following year, a 27-year-old woman named Rosie Jimenez sought an illegal abortion in McAllen, Texas. Jimenez couldn't afford a legal abortion from an OB-GYN because under the Hyde Act, her Medicaid wouldn't cover it. Resorting to a cheaper alternative, Jimenez died of complications from the botched procedure.

She was the first known victim of restrictions on legal abortions after the Roe ruling. Over the next few decades, the Supreme Court would rule on a variety of state laws eroding abortion access. While many were struck down as unconstitutional, several cases chipped away at women's ability to seek an abortion, whether by upholding waiting periods or the need to notify parents. Abortion would continue to spark fights in courthouses, state legislatures, and healthcare clinics across the country. But the ultimate fate of Roe v. Wade always belonged with the Supreme Court, making it a major focus of judicial nomination battles. After years of staying anonymous, the woman known only as Jane Roe

eventually revealed herself to the world in the 1980s. In 1995, Norman McCorvey shocked America by coming out against abortion. She told a Senate subcommittee hearing in 1998, I am dedicated to spending the rest of my life undoing the law that bears my name. But in the final months before her death in 2017, she added another twist by claiming in a documentary that she only changed her public stance because she was paid by anti-abortion groups. She said, I took their money and they took me out in front of the cameras and told me what to say. She added that it made no difference to her if a young woman wanted to have an abortion.

That's why they call it choice. Still, McCorvey left a lasting legacy by volunteering to be the plaintiff in a case that would change the lives of millions of American women. Roe v. Wade made abortion safer and more accessible, drastically reducing deaths resulting from illegal abortions. It freed up generations of women to pursue education and job opportunities. But it would forever remain one of the Supreme Court's most controversial decisions, fueling legal debates that continue to this day. Next on American History Tellers, we speak to Rachel Sheldon, Associate Professor of American History at Pennsylvania State University. She'll share how the power of the Supreme Court has increased over time, and why the idea of politically neutral judges is a relatively new phenomenon.

From Wondery, this is Episode 7 of Supreme Court Landmarks for American History Tellers. If you like American History Tellers, you can binge all episodes early and ad-free right now by joining Wondery Plus in the Wondery app or on Apple Podcasts. Prime members can listen ad-free right now by joining Wondery Plus in the Wondery app or on Apple Podcasts. Prime members can listen ad-free on Amazon Music. And before you go, tell us about yourself by filling out a short survey at wondery.com slash survey. American History Tellers is hosted, edited, and produced by me, Lindsey Graham for Airship. Audio editing by Molly Bach. Sound design by Derek Behrens. This episode is written by Ellie Stanton,

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