But it’s not a funny problem. I have some experience of countries in which the powers that be control the information media, and I know that the first step toward authoritarianism is always the destruction of people’s belief that journalism is, broadly speaking, pursuing and telling the truth. The second step is for the authoritarian leader to say, “Just believe in me, for I am the truth.” Trump’s repeated use of “Believe me” is intended to have exactly that effect.
The Pentagon Papers case is a landmark decision in the fight for journalistic freedom and against state censorship. The inheritors of that 1971 decision at the Times and the Post have thus far acquitted themselves with honor as they seek to do their duty and expose these deceptions. We can only hope that today’s Supreme Court will follow in the footsteps of the justices of 1971 and be as resolute in the defense of the freedom of the press as their predecessors were.
ROE V. WADE (1973)
DOE V. BOLTON (1973)
At the time Roe was decided, abortion regulation around the country was a patchwork: four states had repealed their antiabortion laws completely, and another thirteen had introduced some reforms, but the remaining thirty-seven maintained near-bans. Under the Texas statute criminalizing abortion, doctors could be jailed for two to five years for performing the procedure. The statute contained only one exception: abortions were allowed to save the mother’s life.
But in 1970, two attorneys, Linda Coffee and Sarah Weddington, filed suit on behalf of a pregnant Texas resident challenging the Texas statute and arguing for her right to an abortion. The district court unanimously ruled the statute unconstitutional but would not issue an injunction against it. The case was then appealed to the Supreme Court, where it had to be argued twice: once in front of a seven-justice panel and again after two additional justices were confirmed to complete the Court. By this time, the ACLU’s general counsel (and future president), Norman Dorsen, had joined the legal team.
The Court ultimately found the statute violated the constitutional right to privacy, first articulated in Griswold v. Connecticut (1965) in a case concerning married couples’ right to contraception, and expanded in Roe to encompass an individual’s right to reproductive choice. The Court ultimately held that (1) states could not regulate abortions during the first trimester; (2) from the first trimester until the fetus was viable, states could regulate abortion to protect the mother’s health; and (3) after viability, states could regulate abortion to protect the mother’s health and to protect the potential life of the fetus, even if that meant restricting abortion entirely.
Though Roe established the right to an abortion, its scope continues to be narrowed in cases such as Thornburgh v. American College of Obstetricians and Gynecologists (1986), Planned Parenthood v. Casey (1992), and Gonzales v. Carhart (2007).
The Ambivalent Activist, Jane Roe
LAUREN GROFF
Jane Roe’s nickname was Pixie.
Jane Roe’s real name was Norma McCorvey.
By the time Norma McCorvey became Jane Roe, she was only twenty-one, but she’d already had a tough life. Her parents had been alcoholics, and she’d been married at sixteen to an abusive husband. She had a five-year-old daughter who lived with her mother, and she had already given up her second child to adoption. In the summer of 1969, McCorvey was working for a carnival as a ticket seller in Georgia when, on the dark walk home to the women’s boarding house, she may have been raped. This was her original claim, but she later retracted it. Still, whatever happened, by the next day when she woke up, she found the carnival had gone on to the next place without her. She stayed in town and got work as a waitress, but soon the morning sickness from her unwanted pregnancy was too rough on her. She somehow made her way back to her mother’s in Texas where, when she tried to find an abortion provider, she could not, because abortions were illegal in Texas except to save a woman’s life.
Of course, in the 1960s, abortions were illegal nearly everywhere in the United States, and where they were legal, they were so heavily regulated by hospitals that only rich women and the doctors’ own mistresses and daughters could get one. A poor, uneducated, unconnected woman like Norma had little chance. For context, in the 1960s, there was no such thing as marital rape; women had no right to refuse sex to their husbands. A woman could be fired from her job for getting pregnant. A woman needed her husband’s permission to open a bank account. A woman was not allowed to apply for credit. Due to this prison built out of biology and misogyny and financial constriction, there were an estimated 1 million illegal abortions per year in the United States until 1973.
It should also be mentioned that abortions were illegal despite the fact that abortion has been a common method of birth control in every known human culture and despite the fact that the choice to abort had been a woman’s prerogative through centuries of English and American common law. Abortifacient herbs—rue, parsley, blue cohosh, tansy, pennyroyal—grew in most colonial kitchen gardens. Regulations on abortion began to appear only in the early nineteenth century, mostly as a power grab by doctors to eliminate midwives, barbers, and pharmacists from the doctors’ own medical turf. Restriction as a way of policing public morals hove into view in the late nineteenth and early twentieth centuries, and by then they had little to do with the stated claim that they were intended to protect the life of the mother: a sterile abortion was, and remains, far safer than childbirth itself.
Because she couldn’t get an abortion, Norma McCorvey, in desperation, met with an attorney to begin adoption procedures. When he found out she would have preferred the abortion she couldn’t find, he called in two attorneys he knew who were looking for a plaintiff. Their names were Sarah Weddington and Linda Coffee.
What is most startling about Roe v. Wade to a twenty-first-century observer is how young and green Weddington and Coffee were at the time. The women were not particularly friends, though they’d met as two out of the five women in their matriculating class at the University of Texas Law School. Weddington had graduated from law school at a mere twenty-one years old and was only twenty-three when she met Jane Roe. Linda Coffee was only twenty-six. Neither had ever argued a trial at court, and neither was able to swing an associate position in a big firm after graduation despite being at the top of their class. Weddington was told during her single interview that it was because the wives of the male lawyers didn’t want their husbands working with attractive female associates.
It’s true that Sarah Weddington was a former sorority girl with a broad Texas accent who wore her hyperfemininity as armor, with her porcelain face and long reddish-blonde hair and frilly clothes in pastels. But she was an excellent public speaker and nothing seemed to ruffle her. Linda Coffee was a diffident woman, so careless about her appearance that once a male attorney stopped her in the street to run into a drugstore to buy her pantyhose because if he didn’t, she was going to sit at court with a giant run in hers. Yet her humble demeanor hid a sharp legal mind and a hard-working soul.
Norma McCorvey was far from an ideal plaintiff due to her difficult past and her shifting story, but she was eager to join the case. The two lawyers gave her a pseudonym to protect her privacy and filed a lawsuit on her behalf against Henry Wade, the district attorney of Dallas County, and soon made it into a class-action lawsuit on behalf of all the women of Texas.
Their argument hinged on the Ninth and Fourteenth Amendments to the Constitution. The Ninth Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It is intentionally vague and reserves latent rights that are not listed in the Constitution to the people, including the right to privacy.
The Fourteenth Amendment reads in part, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of
the laws.”
Norma McCorvey had already had her baby by June 1970, when Sarah Weddington stood to argue the case before a three-judge panel of the US District Court in Texas. It was her first court appearance, but she had prepared deeply, and she and the women of Texas won. The judges decided unanimously that the Texas law was unconstitutional. Yet it was a pyrrhic victory, because the court also decided not to grant an injunction against enforcement of the unconstitutional law, which meant that nothing would materially change in Texas and that abortion providers could still be arrested.
By now, the women had strong supporters from groups like Planned Parenthood, NARAL, and the ACLU, all of whom helped to gather brilliant amicus curiae briefs when the women took the case on appeal to the Supreme Court. Weddington also had to endure the gaslighting and maneuvering of a man tangentially related to the case who tried to take away her right to argue before the Supreme Court. So few women had ever argued before the Court that it was clear a man, he said, should do it. Weddington politely asserted her right.
On the day of the oral arguments before the Supreme Court on December 13, 1971, the tiny hearing room was packed. Sarah Weddington, twenty-five years old, stood to make oral arguments for the second time in her life. She stared out at the six pinkish older white men—and the African American justice, Thurgood Marshall—who would decide whether women had the right to choose how and when they could procreate (the two vacant seats would be filled by Richard Nixon months later). She began to present her case. She was not brilliant, to be perfectly honest.
But the Texas assistant attorney general, Jay Floyd, who argued on behalf of the state, was worse. When he stood to make his oral arguments, he tried to make a joke: “Mr. Chief Justice, and may it please the Court, it’s an old joke, but when a man argues against two beautiful ladies like these, they’re going to have the last word.” The justices winced. Coffee and Weddington looked at him stonily. Floyd was thrown and never really recovered.
The decision took an immensely long time to write. Justice Harry Blackmun, a surprise advocate for liberalizing abortion laws and the most junior justice at the time, wrote the majority decision. He was painstaking and slow. Also, because his background was as the legal counsel at the Mayo Clinic, he wanted to understand the medicine involved in the case. He made the attorneys return and reargue the case once more, which went very poorly for the defense, because the male attorney was so certain the court would tip in his favor that he hadn’t bothered to prepare.
Finally, on January 2, 1973, the court issued its decision, 7–2, that abortion was a fundamental right under the Constitution. Norma McCorvey wept when she read about the decision in the newspaper.
That said, Roe v. Wade wasn’t an unambiguous success for proponents of access to abortion. Just seven years later, the Supreme Court upheld a law that allowed Congress to exclude coverage of abortion from the Medicaid program, thereby effectively preventing many poor women from utilizing this new constitutional right. And then, in 1992, while retaining the understanding that abortion is a constitutionally protected decision, the Court jettisoned Blackmun’s framework and replaced it with a standard that allowed states to impose many more barriers to a woman’s ability to get an abortion.
Sarah Weddington grew famous from the case: she became a two-time Texas state legislator, worked in the White House, and has a thriving public speaking career.
Linda Coffee went back to her bankruptcy firm and faded into obscurity, which suited her fine: her goal had been to expand abortion rights, not fame.
Norma McCorvey came out as a lesbian, then became a strict Catholic and repudiated her lesbianism, and, in a coup for antiabortion forces, vocally recanted her role in Roe v. Wade in the 1980s. She died in 2017. But for years before her change of heart, she’d been proud that she had been the wedge that opened the opportunity for other women—desperate women, poor women, women with health issues, women with too many children, women with no alternatives, women with careers, women whose birth control failed, women who’d been raped, women who were too young, women in school, women who were simply unready for the heavy burden of parenthood, women I know and love, women you know and love—to make the choice that Jane Roe hadn’t been allowed to make: to have autonomy over her own body, to take her own reproductive destiny in hand.
O’CONNOR V. DONALDSON (1975)
O’Connor v. Donaldson was the culmination of the efforts of a number of attorneys, most notably Bruce Ennis of the New York Civil Liberties Union, the ACLU’s New York branch. The director of the Mental Patients Rights Project, Ennis worked full time on behalf of those who were institutionalized, winning a series of cases that challenged the conditions of confinement of the mentally ill and mentally disabled. Ennis, the author of Prisoners of Psychiatry (1972), was a fierce opponent of involuntary civil commitment. Prior to O’Connor v. Donaldson, individuals could be held indefinitely in psychiatric facilities, without recourse or review. The Supreme Court dramatically changed this system, ruling that “a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”
A Nondangerous Person
AYELET WALDMAN
In 1975, O’Connor v. Donaldson finally and firmly established the right of people with mental health disabilities to due process protection under the Fourteenth Amendment. In his ruling, Justice Potter Stewart held that “a State cannot constitutionally confine, without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” The decision transformed the status of people with mental health disabilities and of mental hospitals in the United States. According to Bruce Ennis, the singularly idealistic and devoted New York Civil Liberties Union attorney who argued the case before the Supreme Court, in an interview he gave to the New York Times on the day the opinion was issued, the result of the ruling was that “mental hospitals as we have known them can no longer exist in this country as dumping grounds for the old, the poor and the friendless.”
To those of us who came of age after the civil rights movement, the facts of the case are boggling, compelling, and enraging in equal measure. Thirteen years before the hospitalization at issue in the case, the plaintiff, Kenneth Donaldson, voluntarily checked himself into a psychiatric facility, an experience he describes in his book, Insanity Inside Out: The Personal Story Behind the Landmark Supreme Court Decision (1976). During this first hospitalization, Donaldson was by his own account a troublesome patient. He resented being forced to work as a dishwasher and scavenge his dinner from the discards on the staff plates. His grumblings about this and other injustices may well have been part of the motivation for referring him for electroconvulsive therapy (ECT), at the time an agonizing treatment that ward attendants and clinicians sometimes used as a punishment. Donaldson was strapped down and tormented with ECT twice a week. After twenty-three “treatments,” he was finally released.
Following this initial hospitalization, Donaldson was sluggish, hypersensitive, and, for a short period, impotent. He also became understandably suspicious of mental health professionals. As time passed, he began “writing letters to important people. These letters were suggestions, freely given with no expectation of reward other than the feeling of having done one’s part.” So (possibly) a crank. As a result of these letters, he claims in his book, he was subjected to a campaign of harassment by unknown individuals. “My papers were ransacked in my desk drawer and there was cigarette smoke in the room, though neither the maid nor I smoked.” So (possibly) paranoid. He changed his name and then changed it back. He moved over and over again. He had a brush with the law. But all along, he worked, he went to adult education and job training classes, and he raised and supported his family, though he eventually got divorced. Moreover, he was never violent. In fact, those who knew him reported that he was a gentle man.
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bsp; Finally, in 1956, he moved to Florida to stay temporarily with his parents. Something went wrong during this visit, and Donaldson’s father called the police and had his son arrested. It’s unclear why Donaldson’s father made that initial phone call or why he refused ever to support his son’s release. Donaldson writes of having told his parents that he had written an autobiography and sent it off to a publisher. Perhaps that struck his father as delusional behavior. There is evidence that Donaldson expressed to his parents his belief that he had been poisoned by enemies before moving to Florida. What was not alleged was that Donaldson was aggressive or violent to his parents, to himself, or to anyone else. At any rate, his father made the call, Donaldson was arrested, and eventually, after a single, short hearing, he was confined to Florida State Hospital.
Donaldson’s greatest misfortune was that once confined to the hospital, he came under the control of a psychiatrist named J. B. O’Connor. At the time of Donaldson’s commitment, O’Connor was assistant clinical director of Florida State Hospital. Eventually he was promoted all the way to superintendent. O’Connor seems to have borne Donaldson a grudge, perhaps because the patient had become a Christian Scientist and thus refused treatments like the ECT that had made him so miserable during his prior hospitalization. Donaldson remained confined in Florida State Hospital for the next fifteen years, under the thumb of O’Connor and staff physician John Gumanis. He spent much of that time in an open ward with sixty other men, a third of whom had been charged with crimes. During those long years, he was seen for no more than a total of three hours by a psychiatrist, and even those few hours were devoted to administrative rather than therapeutic topics and tasks.
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