By Eleanor Klibanoff, The Texas Tribune
“Linda Coffee argued Roe v. Wade. Now, she’s watching its demise.” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.
Linda Coffee was driving to her office in downtown Dallas when she heard on the radio that she’d just won a U.S. Supreme Court case.
Coffee was just 30 years old in January 1973 when seven justices agreed with her argument that the U.S. Constitution protected the right to abortion early in pregnancy. The court blocked not just the Texas laws that Coffee and her co-counsel, Sarah Weddington, had challenged, but all state laws that banned abortions before fetal viability.
Roe v. Wade has become one of the best known and most influential Supreme Court rulings, radically changing life for millions of American women and sparking a decadeslong holy war that has redrawn the country’s political landscape.
That morning, though, sitting in Dallas traffic, Coffee didn’t know any of that. All she knew was that her years of toiling on the case had paid off.
“I thought, OK, well this is done now,” she said in a recent interview with The Texas Tribune. “I was thinking the [abortion] question was settled for as long as the country lasted.”
Nearly 50 years later, Coffee, now 79, is one of the only people involved in that legal battle who is still alive. Henry Wade, the Dallas district attorney named in the suit, died in 2001, and Norma McCorvey, the pregnant woman identified in the filings as Jane Roe, died in 2017. Weddington died just after Christmas last year.
So Coffee alone has borne the unique burden of watching the U.S. Supreme Court, and its new conservative majority, meticulously pick apart and summarily reject every argument she once used to establish the constitutional protection for abortion.
“It’s a bittersweet thing for me,” she said. “Because I’m glad I got to do what I did, but it bothers me, really, to see how it’s ending up.”
A male-dominated world
Growing up in Dallas in the 1950s, Linda Coffee knew only that she wanted to “do something important” with her life, she said, and that she might have to push the status quo a bit to do so.
As a high school student, she traveled for 18 days by ship to participate in a study abroad program in New Zealand. She was later awarded a scholarship to attend Rice University. After considering several possible careers, her high LSAT scores steered her to law.
Coffee was one of only four or five women in her class at the University of Texas at Austin law school, she recalled, including Weddington and future U.S. Senator Kay Bailey Hutchison. One professor, disinterested in changing his routine simply because there were women in the class, referred to her throughout the semester as “Mr. Coffee.”
After graduating, despite tying for the second-highest score in the state on the bar exam, Coffee struggled to get hired at the male-dominated law firms in Dallas. But then her mother heard through the Dallas gossip mill about a possible opening with a federal judge.
“And so, of course,” Coffee said, “I panicked but I applied.”
Judge Sarah T. Hughes called Coffee directly to offer her a clerkship, which she readily accepted. Hughes was a legal legend, best known for swearing in Lyndon B. Johnson on Air Force One after President John F. Kennedy was assassinated, the first woman to administer the oath of office.
Coffee later told a newspaper that Hughes served “as a living example [that] there are no limitations except those you impose on yourself.” Hughes had worked as a police officer, served in the Texas House of Representatives and was the first female state district judge. At the age of 65, she became the first woman appointed as a federal judge in Texas.
Coffee got an education from Hughes on the true meaning of justice as she watched the judge work through a backlog of racial and gender discrimination cases from the previous decade.
“The reason this [clerkship] even happened is that they spent so much time on discrimination cases that they got way behind on their civil cases,” Coffee said. “And each of the judges in the Northern District of Texas were given the option to hire another clerk that year.”
Even as she transitioned to a career in bankruptcy law, Coffee continued to work on discrimination-related cases and became involved in the women’s movement in Dallas. And increasingly, she kept getting drawn back to the issue of abortion access and the state laws that prohibited the procedure.
But she didn’t yet see a clear avenue to bring a legal challenge to Texas’ total ban, until an old friend, who was also a lawyer, brought her a case involving a gay man arrested for having sex in a public restroom.
The right to privacy
Coffee and Henry McCluskey grew up in the same Baptist church community and went to high school together before both becoming lawyers in Dallas in the early 70s. While Coffee battled gender discrimination, McCluskey took on discrimination of a different ilk.
“Very few people were really completely out then,” Coffee said. “But when he went away to college, he came out more than when he was at home. That was how it went back then.”
McCluskey developed a reputation for taking on cases for lesbian and gay clients, and in the late 1960s represented a man who had been arrested twice for having sex with another man in a public restroom in Dallas.
McCluskey wanted to use that case to challenge Texas’ sodomy laws, and he asked Coffee for help. She didn’t want to put her name on the challenge, fearing backlash at her job, but she says she helped develop McCluskey’s arguments and “ghost wrote” many of his briefs.
Their case stood on the shoulders of Griswold v. Connecticut, a landmark 1965 ruling on contraception access that established the constitutional right to privacy.
Coffee, through McCluskey, argued that Texas’ sodomy laws violated that established right to privacy, in part because it applied broadly to both married and unmarried couples.
A three-judge panel, including Hughes, agreed, ruling that Texas’ sodomy laws were unconstitutional, particularly as they applied to married couples. The U.S. Supreme Court later overturned this ruling on procedural grounds and declined to take up a subsequent case on the same issue.
But working on that case, as well as following some state-level abortion challenges around the country, sharpened Coffee’s understanding of privacy as the framework to challenge Texas’ abortion law. If the right to privacy extended to contraception and sexual activity, she thought, why not the decision to terminate a pregnancy?
Once she had the argument, though, she needed a plaintiff — a pregnant woman who wanted an abortion and was willing to bring a lawsuit to get one. Once again, her friendship with McCluskey paid off. Through his work in adoption law, he met a young pregnant woman named Norma McCorvey.
McCorvey had had a difficult life. She had given up two children already and was barely making ends meet as a waitress. She had no great interest in overturning the abortion laws on moral or legal grounds — she just wanted an abortion, which, in the end, she would not get.
But she was willing to have her story used as the basis of the lawsuit, provided that they use a pseudonym — “Jane Roe.”
In December 1969, Coffee typed out and mailed a letter to Weddington, her old law school classmate, who was working in the same legal and women’s rights circles as Coffee.
“Would you consider being co-counsel in the event that a suit is actually filed,” she wrote. “I have always found that it is a great deal more fun to work with someone on a law suit of this nature.”
Taking the case to the top
Weddington and Coffee are often described in opposition to each other.
Weddington, the blond-haired, blue-eyed daughter of a Methodist minister from Abilene, was outgoing and a skilled orator, while Coffee was as shy as she was whip-smart on the arcane corners of the law.
But as women who had risen to prominence in male-dominated spaces, they had just as much in common with each other. And though they didn’t share this with each other at the time, each harbored a secret and personal investment in the right to privacy.
In 1967, Weddington had gone to Mexico with her husband to get an abortion that she could not access in Texas. And though she wasn’t as out as her friend McCluskey, Coffee was a lesbian.
“These were just things people didn’t talk about as much back then,” Coffee said.
When Coffee paid the $15 to file the original lawsuit on March 3, 1970, they were hopeful that it might make some change, but she said she had no idea the case would go as far as it did.
“No, no, certainly not,” she said. “Because a lot of lawyers never, ever have a case before the Supreme Court, and we were so young on top of that.”
But by December 1971, the two young women — Weddington, 26, and Coffee, 28 — were in front of the high court.
One of Coffee’s primary memories of that day is having to take the elevator down three floors to find a women’s restroom.
“I hope that’s been changed now,” she said. “But then I don’t think they expected that many women to be there.”
In a rare twist, the case actually had to be reargued the next year after two open seats on the court were filled. Once again, they sat before the court and, once again, took the elevators to the toilets.
By the time the ruling came down in January 1973, Coffee had tempered her expectations, according to a news article headlined “Dallas female lawyer: She argues for a living.”
“I think it will be a favorable ruling,” she said at the time. “Not as sweeping as we would like, but not unfavorable.”
But she needn’t have worried. Justice Harry Blackmun authored the 7-2 opinion which went much further than Weddington or Coffee could have hoped, establishing a broad protection for abortion up to the point of fetal viability, usually around 22 to 24 weeks.
While the state had an interest in protecting women’s health and potential life, Blackmun wrote, that had to be balanced with the right to privacy between a woman and her doctor to decide how to respond to a pregnancy.
Coffee remembers being thrilled with the ruling and overwhelmed with the phone calls and messages from people celebrating the news. Such a decisive ruling, she thought, would surely resolve the abortion question in this country.
After the ruling
While Weddington went on to be a prominent women’s rights activist, attorney, author and state legislator, Coffee largely stepped away from the spotlight after the ruling.
She returned to her work as a bankruptcy attorney, though she continued to take on discrimination cases when she could. She also spent a stint playing center for one of seven teams in the short-lived National Women’s Football League.
A decade later, she responded with a pseudonym to a personal ad in the Dallas Observer and met a woman named Rebecca Hartt for dinner at a Mexican restaurant. They spent the entire night discussing Russian literature, Siddhartha and their travels. Hartt was wary about dating a bankruptcy lawyer, which she thought sounded like a boring way to use a law degree.
At the end of the evening, Hartt talked about seeing Weddington speak at the National Organization of Women conference.
“And only then did she say, ‘oh, I worked on that case some, too,’” Hartt recalls. “And I said, ‘no, the other lawyer was Linda Coffee’ because I was a Dallasite, and I remember I was really proud that the lawyer on that case was a Dallasite, too.
“And that’s how I found out, at the end of the night, that she was Linda Coffee,” Hartt said. “She didn’t take credit, even then.”
They’ve been together nearly 40 years, and Hartt is still a bigger cheerleader for Coffee’s legacy than she herself is. The front room of their house serves as a makeshift museum, where Hartt has meticulously cataloged her partner’s life — with Coffee’s football jersey getting as much pride of place as the original filings for Roe v. Wade.
About a decade ago, the couple moved from Dallas to this old one-bedroom house in Mineola, about 86 miles east of Dallas. Mineola is also home to state Sen. Bryan Hughes, one of the state’s most aggressive anti-abortion advocates.
Hughes (no relation to Sarah) was the legislative mastermind behind Senate Bill 8, which banned abortions after about six weeks of pregnancy in Texas. The law, which went into effect in September, employs a creative legal loophole to evade the abortion protections laid out in Roe v. Wade.
When the U.S. Supreme Court repeatedly declined to block that law from being enforced and threw out most of the abortion clinics’ arguments, Coffee started to come to terms with the fact that Roe v. Wade might actually be overturned.
By the time the ruling officially came down in late June, she was braced for it. But it’s still shocking, she said, to see the country return to abortion restrictions that have been suspended for nearly 50 years.
Her concerns go much further than abortion access. Roe v. Wade was based on a ruling in Griswold, the case concerning contraception, and those two cases went on to serve as the legal framework for other landmark decisions on sodomy and gay marriage.
Writing in the New Republic before the ruling, Coffee worried that undoing Roe would “mark the end of personal decision-making” and “revive what the court once deemed the overreaching, unnecessary and excessively burdensome control of citizens.”
“What other freedoms will Americans see retracted if the right to privacy ends in America?” she wrote. “We must think fast and deeply about what it means to undermine this and any right guaranteed by the U.S. Constitution — before it’s too late.”
Coffee has been encouraged by the protests and advocacy that the ruling has sparked. She and Hartt say they’ve heard support for abortion access from surprising corners of their deeply conservative town.
But she’s well aware that she may not live to see abortion access restored in Texas. She hopes that the next generation is ready to pick up the fight where she left it, nearly five decades ago, in the courtrooms as well as in the streets.
In March, on the anniversary of the day she filed the original lawsuit, she and Hartt talked about how the 49-year-old ruling likely wouldn’t make it to age 50.
“I said, ‘Linda, we’re not going to cry or boohoo,’” Hartt said. “We’re going out for a margarita, and we’re going to toast to almost 50 years of choice because of you.”
Hartt added a photo from that day to the unofficial Roe v. Wade archive she has collected over the years.
She captioned it, “a final fiesta.”
Disclosure: Rice University and University of Texas at Austin have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
Join us at The Texas Tribune Festival, happening Sept. 22-24 in downtown Austin, and hear from 300+ speakers shaping the future of Texas including Joe Straus, Jen Psaki, Joaquin Castro, Mayra Flores and many others. See all speakers announced to date and buy tickets.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2022/07/12/linda-coffee-abortion-texas-roe/.
The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.