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The woman who argued Roe v. Wade on Kennedy retiring: “We thought we had won this”

“I’m really worried.”

Sarah Weddington after speaking at the 1980 Convention of the National Federation of Democratic Women in Hartford, Connecticut.
Bettmann Archive

48 years ago, Sarah Weddington, then a 25-year-old attorney who had only worked on a few uncontested divorce cases, took on a pro-bono case involving a young Texas woman’s unsuccessful attempt to legally obtain an abortion. Weddington would go on to argue the case, Roe vs. Wade, in front of the Supreme Court and change the course of American history.

Three years later in 1973, Roe v. Wade, decided 7-2, legalized abortion in many circumstances nationally. For many Americans, it represented a bold step forward toward reproductive rights and women’s rights.

Justice Anthony Kennedy’s departure from the Court puts Roe v. Wade at risk. Kennedy’s replacement, who will be appointed by President Donald Trump, will likely be anti-abortion — or at least, is likely to believe Roe is not properly rooted in the Constitution. Should an abortion case make it to the Supreme Court, a conservative-stacked Court could overturn the case, taking away reproductive rights from women nationally.

I reached out to Weddington to get her reaction to the news and to hear her advice for women looking for ways to protect their right to choose. Our conversation has been edited and condensed.

Karen Turner

What’s your initial reaction to Justice Kennedy retiring?

Sarah Weddington

So disappointed. I’ve been saying in my speeches for years that what I was most worried about [was] if Kennedy or the other any of the other judges who are pro-abortion rights would leave the Court. That would leave the Roe v. Wade decision very vulnerable.

So I guess now the real worry is what’s going to happen to it and other abortion-related cases. And a lot of that depends on who becomes the new justice to fill Kennedy’s position. That goes back to who does Trump appoint — I can’t imagine that it would be anyone I would be pleased with.

Kennedy was the swing vote on a lot of human-rights issues. So those are all going to be very much in play in this coming election. That means maybe more people will get out and vote. I’m trying to be a little positive. But that’s about as far as I can go.

Karen Turner

What are you most concerned about going forward?

Sarah Weddington

If Roe is overturned, it doesn’t automatically make abortion illegal. It leaves it up to the states to pass whatever they want to. Several of the states are very likely to pass legislation making abortion illegal. I’m sure that will be contested, but that would take time. You would have to file a lawsuit against it that would go to a lower court, federal court, then a circuit court, from there perhaps to the Supreme Court. So it won’t happen instantly.

But if abortion were to be made illegal and the Supreme Court upheld that, then what we’re looking at is the law would become what it was at the time of Roe v. Wade. Here in Texas, abortion was illegal except to save the life of the woman, and no one was sure what that meant. There were some other states where it was virtually illegal; there were some where it was sort of legal. It was legal in California before Roe v. Wade — people used to fly from Dallas to California to get procedures.

Here in Dallas, there was a hospital with a special ward for women who tried self-abortions or who had had abortions in very bad circumstances. That was the place where doctors had to try to save the lives of these women and their fertility. I think a lot of people will come forth to talk about what it was like when abortion was illegal if Roe is overturned.

Now, we’re getting toward the worst case scenario I’ve always worried about. When I first heard back on January 22, 1973, that I had won Roe v. Wade, I thought that meant abortion would be legal and continue to be legal for women around the country. Now we’re right on the brink. I hope that’s not the case, but I’m really worried.

Karen Turner

I’m curious too about what it was like being at the forefront of arguing this case.

Sarah Weddington

It started with a group of women and a couple of men in Austin, Texas, who were graduate students at the University of Texas. They had set up a counseling center right across from the university to tell people about contraception. But women were coming up to them and saying, I’m already pregnant, I want an abortion, where can I go? They became very involved in trying to have information for women about where they could go for an illegal abortion, where they could put the money together to be able to go.

One day we were visiting the snack bar at the University of Texas law school. They knew I was a graduate there, so they said to me, “We think the only way to really solve this is to file a lawsuit challenging the constitutionality of this law. Would you file that lawsuit?” I said, “The only cases I’ve ever done were uncontested divorces, wills for people who had very little money, an adoption for my uncle.” I told them, “I think you should get somebody with more federal litigation experience than I have.” They asked how much I would charge them. I said I’d do it for free. And they said, you are our lawyer. So it was a volunteer effort on my part.

Then a woman who was in law school with me named Linda Coffey said she would be my co-counsel on the case. There were also lawyers all over the country who were trying similar cases against state laws. Many of them came the day before the Supreme Court hearing to Washington DC. We did moot courts — they would play like they were the Supreme Court justices and ask questions, and they would suggest a better way to answer them. So there were a lot of people involved. I was just the one standing in front of the Court.

Both the Texas case and the Georgia case were tried the same day. Of the four lawyers who would be making presentations, three of the four were women. Nobody could remember three women arguing the same morning at the Supreme Court, so they called it Women’s Day.

The world has really changed that. But I can remember every moment of it. I’m just amazed that almost 50 years since I started working on it — I started working on it in 1969 — I’m still talking about it. And it is very much in danger.

Karen Turner

What’s your message to women now that Roe v. Wade is at risk? What can they do?

Sarah Weddington

They need to vote. Look at the candidates and their position on reproductive rights. The best way for us to save Roe is for people to be elected who would not vote for a Supreme Court justice who is so opposed to abortion.

The second thing is to financially assist Planned Parenthood and community health providers because they’re having a harder and harder time providing the contraceptive needs that people have, giving them information about where they could go for abortion, helping patients find funding.

People can write letters to their elected representatives, particularly those who were in the Senate. The main thing is for people to care and to be active.

I would like to reach out to all those women and men who are pro-abortion rights and say: I’m really sorry that something we thought we had won for future generations instead we must leave for future generations to protect for themselves. But that’s where we are.

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