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Roe et al. v. Wade: 1973

State Court Favors Plaintiff

The Three-Judge Court Act of 1910 had created courts in which a panel of three judges drawn from a single appellate circuit might resolve interstate commerce disputes between the federal and state governments. Another act, passed in 1937, required that such a panel hear any case questioning the constitutionality of a state law. On May 23, 1970, Coffee, Weddington, Tolles and Floyd appeared in the Fifth Circuit Court in Dallas, Texas, before Judges Irving S. Goldberg, William McLaughlin Taylor, and Sarah Tigham Hughes, for whom Coffee had once clerked. The courtroom was jammed with concerned women and reporters. Norma McCorvey, or "Jane Roe," not required to be present, stayed home.

Coffee and Weddington had amended their case to a class-action suit so that McCorvey would represent not just herself but all pregnant women. They had also been joined in their suit by an "intervenor," Dr. James Hallford, who had been arrested for performing abortions. Hallford's attorneys, Fred Bruner and Roy Merrill, planned to use the traditional physician's defense, the Fourteenth Amendment.

Coffee spoke first. She had to establish that McCorvey did, indeed, have "standing to sue" and that the question was a serious, constitutional one on which the three judges should rule. At one point she said: "I think the [abortion] statute is so bad that the court is just really going to have to strike it all down. I don't think it's worth salvaging."

Weddington approached the bench next. This was her courtroom debut, and she knew it was an important case. She said she disagreed with the "justification which the state alleges for the state abortion statute, that is, the protection of the life of the child.…

"[L]ife is an ongoing process. It is almost impossible," Weddington continued, "to define a point at which life begins or perhaps even at which life ends."

Asked by Judge Goldberg whether the legalization of abortion would promote promiscuity, Weddington said that young women "are already promiscuous when the statute is in effect, and in fact, these are some of the girls who need this right and who have the most socially compelling arguments why they should be allowed abortions—the young still in school, those unable to shoulder the responsibility of a child—these girls should not be put through the pregnancy and should be entitled to an abortion."

Before Weddington stepped down to listen to Fred Bruner's Fourteenth Amendment defense of his physician client, Judge Goldberg asked her one more question. Did she, he wanted to know, think the abortion law was weaker in terms of the Ninth or Fourteenth Amendment? Weddington gave her answer immediately: "I believe it is more vulnerable on the Ninth Amendment basis."

After Bruner addressed the judges, Floyd rose to speak for the state. He claimed that "Roe" must certainly have reached the point in her pregnancy where an abortion would be considered unsafe and therefore had no case. Judge Goldberg flatly disagreed.

Tolles followed for the state, and argued strenuously against a woman's having the right to choose an abortion. "I personally think," he said, "and I think the state's position will be and is, that the right of the child to life is superior to that woman's right to privacy."

The judges did not agree. On June 17, 1970, they issued their opinion: "[T]he Texas abortion laws must be declared unconstitutional because they deprive single women and married couples, of their right, secured by the Ninth Amendment, to choose whether to have children."

Additional topics

Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1973 to 1980Roe et al. v. Wade: 1973 - Norma Mccorvey Tests The Law, Constitutional Issues, State Court Favors Plaintiff, Supreme Court Hears The Case