Roe et al. v. Wade: 1973

The fifth circuit court had issued declarative relief, that is, it had declared the challenged law unconstitutional. It had not, however, issued injunctive relief, which would have been an order for Texas to end its enforcement of that law. For this reason, Weddington and Coffee were entitled to appeal directly to the U.S. Supreme Court, which agreed to hear their case.

Forty-two amici curiae, or "friend of the court" briefs, were filed in support of a woman's right to choose an abortion from organizations as varied as the New York Academy of Medicine, the American College of Gynecologists and Obstetricians, Planned Parenthood and the California chapter of the National Organization for Women. There was also a "woman's brief," signed by such noteworthy women as anthropologist Margaret Mead; Barnard College President Millicent McIntosh; Oregon's past U.S. senator, Maurine Nuebuerger; and feminist theologian Mary Daly. This brief stated, as Marian Faux summarizes it, "that even if a fetus were found to be a legal person, a woman still could not be compelled to nurture it in her body against her will."

On December 13, 1971, Weddington stood before the Supreme Court and contended the state's ability to compel women to bear children left women without any control over their lives. Then she argued against Tolles' claim that a fetus was entitled to protection. "[T]he Constitution, as I read it … attaches protection to the person at the time of birth. Those persons born are citizens."

When Floyd's turn came, he said that "Roe" must surely have given birth by now and thus could not represent pregnant women in a class-action suit. Asked how any pregnant woman could hope to challenge Texas' abortion laws, Floyd replied: "There are situations in which … no remedy is provided. Now, I think she makes her choice prior to the time she becomes pregnant. That is the time of the choice.… Once a child is born, a woman no longer has a choice; and I think pregnancy makes her make that choice as well."

Floyd was then questioned as to why, if abortion was equivalent to murder, no state had ever punished the women involved. He was also questioned about the fact that doctors who performed abortions were not charged with premeditated murder but "ordinary felony murder," a lesser charge. Finally, he was asked to clarify when life began according to the state of Texas. After several attempts to answer the question, Floyd could only say: "I don't—Mr. Justice—there are unanswerable questions in this field."

Since there had been only seven sitting justices when Roe v. Wade was argued, the justices decided such an important case should be re-argued when two newly appointed justices—William Rehnquist and Lewis Powell—joined the Court, restoring the number of justices to nine. Weddington, Coffee, Tolles, and Floyd did so October 10, 1972, repeating their basic arguments.