Thank you. I am delighted to be part of this opportunity for discussion and reflection. Those who get the applause are often not the ones who have done most of the work. The Albany Law Review editors, including Josh Vinciguerra and Jonathan Whalen, and those on the Law Review have done so much work toward this day that I think we should indicate our appreciation of their time and effort. We are grateful for all the work that you gave to this effort.
While our discussion today is among ourselves, through the pages of the Albany Law Review the discussion will go to a much wider audience. Those of you who are here for the question-and-answer session will have a chance for your questions to be recorded and for the answers to be noted. This panel presentation will be part of a national discussion through the pages of the Law Review.
My training as a lawyer, as is true for every lawyer trained in the traditional law school manner, emphasized an intellectual approach to issues. My friends and I sometimes call it "living in your head." Professor Steinbock began our session by posing important questions.(1) Together we will look at them intellectually, but today I am compelled to look at them sentimentally as well.
There are moments that engage our sense of self, our values, and our hopes for others in society. My participation in the case of Roe v. Wade(2) and the surrounding issues has involved all of that, in addition to the intellectual considerations. Today my sentiments and emotions are especially close to the surface and capture my attention.
After a year of intense activity, today's will be my last speech on this subject during the decision's twenty-fifth anniversary year. This year of 1998 has been one of almost continuous involvement in events to raise money for pro-choice groups and candidates.
But as of today, I think of myself as "emeritus." That designation represents a change in my level of involvement. A professor emeritus, for example, continues to have an office and to follow with devotion his or her areas of special expertise, but the main action shifts to other players. Today, I am the keynote speaker, but then the spotlight will shift to other participants. Lest I give the wrong impression, let me clarify that it would be inaccurate to say that I will never again speak on the topic. I will continue to be a participant in related national events; I care too much to do otherwise. However, my role will be one of support for others who are taking the leading legal and advocacy responsibilities.
I have been involved for many years. I started the background research for Roe in 1969, almost thirty years ago. The decision is twenty-five years old as of this past January 22nd.(3) I was introduced on a college campus recently as being "historic." Because I do not see myself in that light, I was later complaining to a friend who said, "Well, at least you're not archaic." That is true; the issues I was working on those many years ago are central to the discussion today.
I am also grateful to the Law Review members for including presentations by lawyers who agree and disagree with Roe. Including an opponent of Roe(4) relieves me of the responsibility I generally feel as a professor to present both sides. Additionally, the eloquence and expertise of those who participate today in favor of the Roe decision allows me the freedom to talk about what is in my heart with confidence that others will ably present additional substance. The article included about violence aimed at abortion providers and clinics(5) addresses a critical issue of access for abortion.
In fact, when I look at those of you who are in law school and who are younger lawyers, I am cognizant that soon you will become the key players on the issues of today's discussion and many others. You will soon be the advocates and the opinion leaders, on whatever side you choose, in whatever way you choose. I want you to know about the past of the case called Roe v. Wade. I would welcome your support of and your involvement in the principles I have worked for.
When I am introduced as the attorney who won Roe v. Wade, I know that is a half-truth. I filed the case with my co-counsel who participated continually, but I was the only attorney to argue for Roe before the Supreme Court. My work in reality was part of a large concentration of effort by many. Lawyers throughout the country were filing similar cases and pioneering the legal challenges.(6) Others had written law review articles or scholarly works that laid the groundwork for analysis and beginning litigation.(7) Several of my professors at the University of Texas School of Law helped me in various ways, including insights regarding the constitutional issue and how to bring a class action. (I'm sure you remember that the case was not for one person; it was not just for Jane Roe, it was a class action for all women who might become pregnant and want the option of legal abortion to be available.)
Once certiorari was granted by the Supreme Court, lawyers from all over the country prepared amicus curiae briefs for filing on our behalf.(8) The Supreme Court had before it the brief I helped prepare, but it also had before it a huge stack of briefs filed on behalf of medical groups, religious groups, women's groups, and welfare rights organizations, among others.(9) Additional amicus briefs were filed supporting the position of the Texas Attorney General in defense of the state statute.(10)
Countless hours were spent in moot court sessions. Law professors, law students, other lawyers, and people in my home community of Austin, Texas, participated in sessions before I went to Washington, D.C. In Washington, the day before oral argument, expert pro-choice lawyers from all over the country met to coach me one more time. I am grateful to all those who helped in the process of filing, litigating, and arguing Roe v. Wade.
When I argued the case in the Supreme Court, I did not know that my words were being recorded. I'm glad; I think knowing would have made me more nervous. Today you can hear the oral argument as part of a tape series called May It Please the Court.(11) One set of tapes contains what the compiling author considered the ten most important arguments; the other has the cases considered by the compiler to be the most important Supreme Court cases relating to abortion. Today you can hear my words and those of opposing counsel and the questions posed by the Supreme Court Justices.
In 1973, with the naivete of youth, I thought winning the case by a vote of seven to two settled the issue. However, in the intervening years, I have learned that the decision more closely resembled a beginning volley. Within a few months, prominent anti-abortion organizations had announced a goal of overturning Roe v. Wade.(12) As you will hear from other speakers, from that day to this one, related issues have continued to expand and be central to legal, legislative, and political debates.
Although Roe was a judicial earthquake, important prior legislative decisions were made here in Albany.(13) It was in this state, via action of the New York legislature, that abortion became legal before Roe.(14) A woman legislator, Constance Cooke, from Ithaca, and others, introduced a bill to make abortion legal. After the bill passed the Senate and, after Assembly committee action, arrived on the floor of the Assembly for a vote. The result was a tie. As the vote was about to be lost for lack of a majority, one legislator--a Jewish member from a Catholic district who had voted against the measure--rose and said in essence, "I will soon have an important holiday with my family. I cannot face my wife and my daughters if this bill is defeated. I switch my vote." That legislator predicted that day he would lose the next election because of his vote, and he was right.(15)
But because of his vote change, New York became a haven for many women from all over the country.(16) Women of some means who wanted an abortion and who lived in states where abortion was illegal often made their way to New York to access competent, legal medical care.(17)
New York is today a state in the national spotlight for a very different reason: the recent murder of a doctor in Buffalo.(18) The doctor was shot in his home in front of his wife and children by someone hiding in his backyard.(19) Dr. Barnett Slepian offered a variety of services to his patients, one of which was abortion.(20) Last week, on October 30, national press coverage highlighted letters that purported to include Anthrax, which were received by a number of Planned Parenthoods, including one in Indiana where I had visited only a few days earlier.(21)
I wish I could tell you that my generation was able to finish the legal and legislative consideration of this issue and to firmly establish a personal right of private decision-making regarding abortion, and that your generation instead would inherit the moral and religious debate about what action should be taken in a specific situation. I wish we had been able to establish for all time that the decision about the appropriate response to a pregnancy is basically one for the pregnant woman to make. I wish you were free to move forward to other important issues. Instead what I know is that you will inherit the legal and legislative debate, in addition to the moral and religious debate, about abortion.
Therefore, I am here to ask for your attention and to hope for your support, with the belief that many of you will, in future times, contribute part of your skills of analysis, your legal prowess, your compassion, and your volunteer service to the principle of constitutional privacy.
January 22, 1973 is a day that is easily recalled in my mind's eye. I did not know if I was winning or losing Roe v. Wade, so I had decided to run for the Texas legislature. I was the first woman elected to the legislature from Austin, the capital of Texas. In...