After decades of changing allegiances, Norma McCorvey came to occupy what she called “the mushy middle,” supporting abortion rights with some limits.Photograph by Annie Leibovitz
Roe v. Wade may be the rare Supreme Court decision that most Americans can name, but it’s also one of the few that many volubly disparage—and not just anti-abortion activists who want to get rid of it altogether. Ruth Bader Ginsburg was a staunch advocate of access to abortion but an open critic of the reasoning behind Roe. She thought the rationale should have centered on preventing sex discrimination rather than on preserving a right to privacy. “The image you get from reading the Roe v. Wade opinion is it’s mostly a doctor’s-rights case—a doctor’s right to prescribe what he thinks his patient needs,” Ginsburg told the legal writer and scholar Jeffrey Rosen, in 2019. “My idea of how choice should have developed was not a privacy notion, not a doctor’s-right notion, but a woman’s right to control her own destiny, to be able to make choices without a Big Brother state telling her what she can and cannot do.”
Ginsburg also declared herself on board with another critique of the decision: namely, that when Roe was handed down, in 1973, it short-circuited a political process whereby states had been gradually legalizing abortion on their own, and thus created the conditions for a polarizing backlash that we are still living through. Although this interpretation is not entirely borne out by the facts—more on that later—it has congealed into conventional wisdom. “Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American,” the columnist David Brooks wrote, in 2005, of the opinion’s author. Roe v. Wade, Brooks argued, “set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since.” Unlike other rulings that recognized new social norms and established new constitutional rights—to interracial marriage and same-sex marriage, for instance—Roe v. Wade remains vulnerable even now, nearly half a century later, to a precedent-flipping, stare-decisis-flouting new ruling. It has never been more so, in fact, than it is now. In the coming term, the conservative-majority Court has agreed to hear a case in which the state of Mississippi is essentially seeking to overturn Roe, along with Planned Parenthood v. Casey (1992), which reaffirmed the right to abortion before the stage of fetal viability. Earlier this month, the Court offered a preview of its orientation when it declined to halt enforcement of an even more draconian Texas law, which bans all abortions after about six weeks, a point at which many women do not even know that they are pregnant.
Roe is unusual in another respect. In most landmark cases, the plaintiff doesn’t stick around like an ornery barfly at closing time, making trouble for all sides. When Jane Roe, whose real name was Norma McCorvey, became a plaintiff in one of the highest-profile cases ever to go before the Supreme Court, she was a broke, divorced, twenty-two-year-old Texan with a ninth-grade education—“a street person, drug addict, drunk,” as she described herself, decades later. Most of her lovers were women, but, in 1970, she was unintentionally pregnant for the third time, by a flaky married guy who was already out of the picture. She wasn’t looking for a crusade when she met with the feminist lawyers Sarah Weddington and Linda Coffee at a pizza parlor in Dallas; she was looking for a way to end her pregnancy. Abortion was illegal in Texas, and McCorvey was most likely too far along in her pregnancy to make it to one of the few states where it wasn’t; also, she’d been scared off by a reconnaissance visit to an illegal practitioner closer to home.
By the time the Court handed down its decision in the case, McCorvey had given birth to a baby girl and relinquished her for adoption. She had also met Connie Gonzalez, her devoted partner for many years (although McCorvey cheated on her with gusto), and the two were eking out a living as housecleaners. When McCorvey got the call from Weddington and learned that she’d prevailed in the highest court, the victory didn’t mean much to her. As the journalist Joshua Prager writes in “The Family Roe: An American Story” (Norton), his prodigiously researched, richly detailed, sensitively told account of McCorvey’s strange, and very American, odyssey, “Her own lawyers had not much cared to know her. She, in turn, had not much cared to know about their case; when, months later, Norma listed in her red plastic datebook the important events of 1973, she included the Yom Kippur War, the Texas State Fair, and the closing of a local theater, but not the lawsuit that bore her assumed name.”
McCorvey eventually acknowledged that she was Jane Roe and, in the late nineteen-eighties and early nineties, began making appearances in the national media. She served as an ambivalent asset to the pro-choice movement, attending rallies, and telling her story—not especially truthfully, according to Prager—in a best-selling 1994 memoir, “I Am Roe.” The ambivalence ran both ways, and was awkwardly riven by class. McCorvey thought the pro-choice leaders were hoity-toity. They left her out of events commemorating Roe where she figured she should have been a featured speaker. She thought they wanted her to be something she wasn’t—“a demure . . . white glove lady.” (She felt differently about the celebrity lawyer Gloria Allred, who did the talk-show circuit with her for a while and brought out McCorvey’s salty, extemporaneous charm.)
Pro-choice activists didn’t really want McCorvey donning white gloves, of all things, but they did tend to see her as a loose cannon and an unreliable narrator of her own life. For years, McCorvey had told reporters that the pregnancy she’d gone to court over had been the result of a rape. When she explained, in a 1987 interview, that it was actually a consensual encounter, the revelation came as an embarrassment to the pro-choice movement. Anti-abortion activists seized on the admission, arguing that it essentially invalidated the Court’s ruling. Prager quotes a letter to a Virginia newspaper from a preacher: “As a result of McCorvey’s lie, more than twenty million babies have been aborted.” In fact, neither McCorvey’s affidavit nor Blackmun’s opinion mentioned anything about how she got pregnant.
Then, in the mid-nineties, while McCorvey was answering phones at an abortion clinic, she met Flip Benham, a former saloonkeeper turned anti-abortion militant. Benham was a born-again-Christian lay minister who preached not only against abortion but also against homosexuality. He kind of liked Norma, though, and, more to the point, he saw in her a prize convert for his movement. Soon he was pressing a Bible into her hands, making her a business card that read “Miss Norma, Slave for Christ,” and baptizing her in a back-yard pool in suburban Dallas. So began McCorvey’s turn as an asset to the other side in the abortion wars. The head of Texans United for Life crowed, “The poster child has jumped off the poster.” In time, McCorvey rebelled against Benham’s insistence that she renounce her lesbianism, but she continued to cast her lot with the anti-abortion side, eventually converting to Catholicism.
Prager is not unsympathetic to McCorvey, but he sees her clearly. He notes that, unlike some of her feminist allies, pro-life leaders, even though they rejected her homosexuality, “made a public point of embracing Norma as she was—blunt and blue-collar.” He paints a believable portrait of a woman who cared about flirting and fun, seduction and sex, attention and affirmation—“watching out for Norma’s salvation and Norma’s ass,” as she once put it—but not about ideology, or politics, or anybody else’s rights, really, let alone their souls. McCorvey confided to Prager, who spent time with her at the end of her life, “It’s really a lot harder on this side because you gotta act like you care. But I don’t really give a shit.”
McCorvey died in 2017, and three years later a documentary about her, “AKA Jane Roe,” portrayed her as having never truly changed her mind about abortion but having been paid off to say she had. Yet, in Prager’s persuasive telling, it was not so much a secret deal as a product of McCorvey’s personality. It’s true that in the documentary McCorvey, interviewed in a nursing home, tells the filmmaker, Nick Sweeney, “If a young woman wants to have an abortion, fine, it’s no skin off my ass.” And when Sweeney asks if her advocacy for the pro-life side “was all an act,” she replies, “Yeah. I did it well, too.” Though the film suggests that anti-abortion activists had paid McCorvey handsomely, Prager says she made something like eight hundred dollars on average for a talk, and “struggled to hold on to what little she earned.” In fact, the pro-choice side had paid her for public appearances, too, but she never got rich off either movement. You don’t get the impression that McCorvey was purposefully lying to activists on either side. When she decided that people were being high and mighty with her, it was enough to send her skittering back and forth across what seemed to others like profound dividing lines of conscience and belief. She just doesn’t seem to have cared all that much about reproductive rights. McCorvey, speaking of her defection to the anti-abortion camp, told Prager, “I was lonely for some excitement. I needed to do something that would cause media attention. Isn’t that awful?”
Prager got an astonishing array of people to talk to him for this book—from short-term girlfriends of McCorvey’s to the son of Henry Wade, the Dallas D.A. who was Roe’s legal antagonist and who, we learn here, was secretly pro-choice. The book is most compelling, though, when it’s relating the personal saga of a woman and her family caught in the gears of history. Prager brings in two characters beyond McCorvey’s orbit—Mildred Jefferson, an African American pro-life leader, and Curtis Boyd, a doctor who provided abortions before and after Roe—but their stories don’t add much to the narrative. Its drive comes from Prager’s efforts to track down the three daughters whom McCorvey gave up for adoption.
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What he learns about these women doesn’t cohere into a neat takeaway, although it’s notable that all three tell him they are pro-choice. The oldest, who was partly raised by Norma’s mother and sister, and who knew Norma, yearns for a deep family bond with her two half sisters and hopes that they’ll find a way to accept their mother. The middle sister, who most resembles McCorvey and is, like her, a lesbian, is more interested in information about her biological parents than in a relationship with them. The youngest, the so-called Roe baby, was identified by a pro-life private detective shortly before her nineteenth birthday, laying the groundwork for a National Enquirer story. Until then, she had pretended that her real parents were Ann-Margret and Elvis Presley, and she tells Prager that she wishes she’d never learned the facts of her birth. The sisters’ lives are ordinary, zigzagging between rough passages (depression, divorce, domestic abuse, addiction) and periods of fulfillment (going back to school, loving a job at a florist’s, meeting a nice new guy or gal, embracing stay-at-home motherhood). And yet, because their biological mother happens to have been Jane Roe, they are also extraordinary. It’s like a fairy tale set in working-class America, each sister carrying a secret and a curse.
Would a different Jane Roe have changed the way the case has been perceived over the years? Reading “The Family Roe,” you wonder whether someone other than McCorvey might have been a better fit for the role, and whether she might have been served better by sidestepping it. The one thing McCorvey had wanted when she went to see the lawyers she’d been referred to was an abortion—and she never got it. Weddington and Coffee do seem to have told her that, by the time her case made it to court, it would almost certainly be too late to end the pregnancy. But they did not help her to get an abortion, and, as Prager notes, they could at least have tried. Weddington had worked with a service that referred people seeking abortions to clinics in California (where it was legal) and in Mexico (where it was quasi-legal). She herself had obtained an abortion in Mexico a few years earlier.
Weddington was only twenty-six when she argued Roe in front of the Supreme Court. The prevailing atmosphere was so sexist that the Texas assistant attorney general prefaced his argument with a lame quip about the difficulty of facing off against “such beautiful ladies.” There is much to admire about her: she went on to win a seat in the state legislature, to write a memoir about the case, and to become a popular speaker on college campuses. But Prager says that in early interviews Weddington made it sound as if McCorvey had decided to carry her pregnancy to term to make sure she would still have standing, thereby saving the case. In fact, Prager writes, “Norma had shown no such valor.” Coffee gets a more sympathetic treatment, perhaps in part because Weddington declined to talk to Prager, and in part because Coffee had a much lower profile for decades. By the time Prager located her, she had been acquitted of fraud charges (after allegedly forging a client’s signature) and suspended by the Texas bar a few times, when she got behind on her licensing payments. She was living quietly with her partner in a small town in East Texas, where it was not easy to be open about her gay identity. Her finances were precarious enough that she relied on a local food bank. When she was invited, with Weddington, to a pro-choice fund-raising event in 2019, the former partners in history-making hadn’t seen each other in twenty-seven years.
By the time the pro-life movement took McCorvey aboard, anti-abortion activists had widened their focus from the vulnerable fetus to the woman carrying it—who, they argued, would be morally, emotionally, and physically damaged by an abortion. The purported damage ranged from regret to a constellation of woes called “post-abortion syndrome.” Ronald Reagan’s Surgeon General C. Everett Koop was tasked with collecting evidence of P.A.S., but admitted that he couldn’t find any. Evidence of routine regret was also lacking. A large-scale study conducted by researchers at the University of California, San Francisco, found that, five years out, the vast majority of women who had undergone an abortion said it had been the right choice for them. In any case, regret is a dubious basis for policy. People regret all kinds of decisions, large and small, but we don’t proactively deprive them of their decision-making agency on the chance that they might. The anti-abortion movement made McCorvey into a sad-eyed embodiment of tormenting second thoughts. Here, after all, was the very woman whose pregnancy had legalized abortion, now decrying it. But the regret McCorvey expressed time and again was about not getting an abortion—she even shared that sentiment with a reporter sent to cover her born-again baptism.
There had been other possible plaintiffs, other possible routes to the Supreme Court. As a young litigator with the A.C.L.U., Ruth Bader Ginsburg had hoped that the Court’s first abortion case would be one in which she was representing a woman seeking not to have an abortion. The woman was Susan Struck, a nurse in the Air Force who became pregnant in 1970, while serving in Vietnam. The military gave her two choices: have an abortion or be immediately discharged. (Though illegal in most states, abortion was allowed on military bases.) The Supreme Court agreed to hear Struck v. Secretary of Defense, but in the meantime the Air Force, realizing that it would likely lose, overturned the policy. An opinion in the Struck case, Ginsburg believed, would have anchored the right to have an abortion—like the right not to have one—in the notion of equality. A whole class of people could not be denied equal treatment under the law simply because they were subject to the condition of pregnancy.
“The Family Roe” tells us that Weddington and Coffee, hedging their bets against the possibility that Norma would drop out of the suit, had challenged the Texas abortion law on behalf of another plaintiff as well. Her name was Marsha King, and she was, Prager writes, “unlike Norma in almost every way.” A married engineer with an advanced degree in physics, King had talked openly about the importance of abortion rights ever since having a gruelling procedure herself, in Mexico. She was in ill health and didn’t want to risk getting pregnant again, but, because she wasn’t currently pregnant, the Texas court that heard the case found she didn’t have standing. Even so, there might have been many other candidates like King. By 1970, there had been speak-outs where women came forward in public forums to talk about their own fears of unwanted pregnancy and their experiences with illegal abortionists. These were feminists attuned to the wider significance of legalizing abortion, more committed to a cause than to their own immediate self-interest.
In the years since Roe, some civil-rights lawyers seem to have sought out appealing, well-spoken clients, with a history of activism or at least developed opinions on the issue at stake. That was true, for instance, of most of the plaintiffs in the lawsuits seeking to legalize same-sex marriage, who were upstanding embodiments of respectability politics—monogamous, middle class, sometimes devotedly caring for a disabled partner. Projecting a sort of “disdain for politics” was often part of the package, as Cynthia Godsoe, a professor at Brooklyn Law School, points out in an essay called “Perfect Plaintiffs.” Jim Obergefell, the plaintiff in Obergefell v. Hodges (2015), the case that established same-sex marriage, told reporters, “No one could ever accuse us of being activists. . . . We just lived our lives.” Still, Godsoe writes, “several had been involved in previous LGB advocacy; all were attractive candidates for careful recruitment by cause lawyers.” A belief in the mission and the support of other people who believe in it can gird a person for a long, public fight, making things easier on the client, emotionally, and on the larger movement, politically.
And yet a plaintiff’s character or commitment doesn’t necessarily matter to the outcome of the case. It was easy to love the Lovings, the plaintiffs in Loving v. Virginia (1967), which legalized interracial marriage across the country. Their lawyers could accurately present them as ordinary, apolitical rural folks, a couple who loved each other and simply wanted to live together quietly and legally. Yet, as Godsoe notes, these dream clients with the dream name came to their lawyers by “happenstance.” John Lawrence, of Lawrence v. Texas (2003), the landmark Supreme Court case that overturned sodomy laws, was nobody’s idea of a dream plaintiff. He had displayed no interest in gay-rights activism, and he had a previous conviction for vehicular homicide. One night, the police invaded his home without a warrant and arrested him for having sex with another man. Lawrence’s partner wasn’t even his lover, as the law professor Dale Carpenter revealed in his book on the case, “Flagrant Conduct.” But arrests for sodomy in Texas were rare, so this one offered a valuable opportunity to challenge a set of assumptions behind legal anti-gay discrimination. McCorvey’s main qualification, too, was being in the right place in the right condition at the right time, and being willing to sign an affidavit.
Those of us who are pro-choice may be tempted to sigh over Roe v. Wade, wondering how it could have been different. Maybe, as Justice Ginsburg believed, it would have been better to ground the right to abortion in equality rather than in privacy. You can see the pitfalls of a “my body, my choice” absolutism—or a caricature of it—in the anti-vaccine and anti-mask movements of today. Many feminist thinkers now argue for a more inclusive, and potentially sturdier, defense of abortion rights in what’s often called reproductive justice. It embraces the freedom to have children, with adequate social supports to raise them, as well as the freedom to postpone or prevent childbearing. That would mean, as Reva Siegel, a law professor at Yale, has put it, looking beyond abortion and asking, “What are all the ways that law impinges on—empowers or disempowers—people in their intimate and their family lives?”
On the other hand, Justice Blackmun’s elaboration of a constitutional right to privacy, the assertion that there are areas of intimate life on which the state cannot encroach, has been important in subsequent decisions governing the right to marry whom one chooses, and in the understanding of human rights more generally. And the backlash argument—that it was the judicial overreach of Roe that created this country’s long-lasting division over abortion—deserves at least an asterisk. There’s no doubt that Roe exerted what Prager describes as a galvanizing effect on anti-abortion activists. It has been a mainstay of evangelical politics for decades, and all the more offensive to some because it could be attributed to what Antonin Scalia called “the black-robed supremacy” on the federal bench. Yet Siegel and Linda Greenhouse, a former Supreme Court reporter for the Times, have dug into the backlash claim and provided a set of complicating facts. Polling on the eve of Roe showed that a “substantial majority” of Americans favored decriminalizing abortion, including two-thirds of self-identified Republicans and fifty-six per cent of Catholics. But, they write, “despite broad popular support, liberalization of abortion law had all but come to a halt in the face of concerted opposition by a Catholic-led minority.” Republicans began stoking opposition to abortion as part of a strategy to lure working-class Catholic voters and Southerners who were alienated by the Democratic Party’s outreach to minorities, by the counterculture, and by the women’s movement. In Greenhouse and Siegel’s view, there is nothing uniquely backlash-inducing about a judicial, as opposed to a legislative, extension of rights.
As for McCorvey herself, precisely because of her ambivalence she was, in significant ways, a highly representative and therefore inadvertently eloquent plaintiff. As Prager writes, “If Norma was uncomfortable with the increasing surety and absolutism of both movements, she was hardly alone.” By the end of her life, she occupied what she called “the mushy middle,” supporting, as many Americans do, abortion rights but with some limits. And the fact that she did not want to be a parent was certainly related to what Ginsburg called “the right to control her own destiny.” Her topsy-turvy life is a reminder, too, that if the personal is the political, the political is also the personal, driven by inconsistency and exigency.
McCorvey wanted an abortion at a time when some women could fly to California or Oregon or Mexico to get one and others could not. She simply didn’t have the money. Today, more than half of those who have abortions live below the federal poverty line. And they are the ones who will suffer if the Supreme Court overturns Roe. Women will always seek to end unwanted pregnancies, as they have throughout history, and throughout the world, regardless of what the law says. Indeed, doing so is easier now than ever, given the availability of reliable abortion-inducing drugs that can be taken at home and are increasingly provided by online services. People of means seeking abortions will be able to travel to states that have strengthened their own laws to make sure the procedure can still be offered there. Women short on funds, or information, or child care, or the ability to take time off from work will be out of luck and, if they do find a way to end an unwanted pregnancy, more vulnerable to prosecution. Norma McCorvey’s obituary in the Washington Post ended, aptly, with something she said in 1994: “I don’t require that much in my life. I just never had the privilege to go into an abortion clinic, lay down, and have an abortion. That’s the only thing I never had.” In that way, McCorvey was the perfect plaintiff—a harbinger of things to come. ♦