In the 1996 satirical film Citizen Ruth, Laura Dern brilliantly portrayed Ruth Stoops, who irresponsibly uses drugs while pregnant. Stoops finds herself in jail with anti-abortion protesters. When they learn that the judge has effectively encouraged Stoops to end her pregnancy, the protesters enlist her in their cause. But Stoops proves to be a far from ideal spokesperson. She profanely asks whether the people at the pro-life clinic to which her new friends bring her are deaf, because she wants an abortion. Switching sides, she has no greater affinity for the pro-choice activists who later enlist her to their cause. Stoops is happy to exploit everyone who seeks to exploit her. She is looking out for herself alone.
Life imitates art. Last week, FX premiered AKA Jane Roe, a documentary on the life of Norma McCorvey, the woman who was the plaintiff in Roe v. Wade. The twists and turns are breathtaking.
In early 1970, McCorvey sought an abortion, telling the doctor to whom she went that she had become pregnant as a result of a rape. Many years later, she revealed that the rape allegation was untrue, a fabrication designed to enable her to obtain an abortion. Why McCorvey thought the lie would work is unclear, given that the Texas law forbidding abortion contained only one exception—to save the woman’s life. In any event, the rape allegation played no role in the Supreme Court’s Roe decision, but, as a pro-choice activist says in AKA Jane Roe, McCorvey’s acknowledgment of the lie damaged her as a spokesperson.
Nonetheless, for a time McCorvey was an outspoken advocate for legal abortion, but only for a time. After she was befriended by pro-life activists, she was born again, switched sides, recanted, and became a prominent spokesperson for overturning Roe.
The big reveal comes near the end of AKA Jane Roe. In what she describes as a “deathbed confession,” McCorvey says she took the pro-life organizations’ money and said what they wanted her to say but indicates that she was always still pro-choice. As shown by tax documents, McCorvey was paid close to half a million dollars by pro-life individuals and organizations.
Why Individual Stories Don’t Matter
Where McCorvey’s acknowledgment that she fabricated the rape allegation and her religious rebirth were a publicity boon to the pro-life movement, so it seems her deathbed confession will benefit the pro-choice side. Yet, as a strictly legal matter, none of McCorvey’s statements or views should have any relevance to the legal status of abortion.
For one thing, it is purely an accident of history that McCorvey was the plaintiff in the precedent-setting case in the Supreme Court. The lawyers who brought Roe to the Court—Sarah Weddington and Linda Coffee—had been actively looking for suitable plaintiffs, as were other feminist lawyers. The very pseudonymous nature of the case underscores that the actual identity of the woman seeking an abortion was unimportant. And of course, as McCorvey herself recounts in AKA Jane Roe, the Supreme Court’s 1973 ruling did nothing directly for her. By that time, she had given birth and given up her baby for adoption. Although the Roe decision begins with an explanation that the case is not moot because “Roe” could become pregnant again, the case was really about women generally, not any particular woman.
That observation holds in just about every case the Supreme Court hears. Constitutional courts in many other countries have the power to hear so-called abstract cases that test the constitutionality of a law in the absence of any particular dispute. No federal court has that formal power, but unofficially, the Supreme Court uses concrete cases chiefly as a mechanism for addressing broad general questions. Unlike lower courts, which must hear whatever cases are brought within their jurisdiction, the Supreme Court has nearly complete discretion over its docket, allowing it to choose those concrete cases that have significance beyond the particular parties.
Moreover, the parties whose cases give rise to important rules of law can be unsavory characters. Criminals are the typical protagonists in cases establishing the rights of law-abiding citizens against unreasonable police tactics. Neo-Nazis and Klansmen have won cases guaranteeing principles of free speech that protect civil rights protesters. As often as not, the Supreme Court makes constitutional law despite, rather than because of, a party’s particular story.
How Stories Nonetheless Matter
And yet, it would be a mistake to conclude that the underlying stories are completely irrelevant. As the editor of a book that tells the back stories of landmark constitutional law cases, I could hardly think otherwise.
Although the Supreme Court establishes general principles, by doing so only in concrete cases it gives effect to a particular and sensible understanding of law as something more than simply words on a page. If you want to know whether a law is constitutional, you will want to know what the law means, but what it means will be determined in substantial measure by how it applies in practice.
For example, the Court is now considering the constitutionality of a Louisiana law requiring doctors who perform abortions to have admitting privileges at a local hospital. Four years ago the Court invalidated a nearly identical Texas law. Louisiana argues, among other things, that its law works sufficiently differently from the Texas law so as not to unduly burden the abortion right. Whether that claim is persuasive should turn on the actual facts, not on hypothetical examples or fiction.
Perhaps the most shocking part of the final twist in McCorvey’s story is the hypocrisy it reveals. For years, the pro-life movement has defamed doctors who perform abortions and the workers and clinics who support them by portraying abortion as a money-making industry, even though people who perform or assist in abortions typically have more lucrative and safer alternative ways to make a living. Yet it turns out that a key pro-life spokesperson was actually in it for the money. In light of McCorvey’s story, the defamatory claims of greedy abortion doctors can be seen as an exercise in projection—paralleling the constant projection one sees from Donald Trump, who is also famous for his constant lying. Now more than ever, truth should matter.
Coping with Complexity
To say that truth should be preferred to lies is not to deny that the truth is sometimes messy. Was Norma McCorvey pro-choice, then pro-life, then pro-choice again? Was she pro-choice all along? Or were her substantive views about abortion always somewhat inchoate and less relevant to her than how she felt activists in each respective movement treated her—as AKA Jane Roe implies?
The documentary raises as many questions as it answers. If McCorvey’s religious conversion was only for show so she could get paid, why did it lead to the breakup of her long-term lesbian partnership based on church teaching against homosexuality? Even years after the breakup, it is painfully clear that McCorvey still loved Connie Gonzalez. Did she sell away not only her pro-choice beliefs but also the love of her life? And why?
We will likely never know, but that fact, which heightens the poignancy of McCorvey’s personal story, does not undermine the authority of the case that bears her pseudonym.
Consider another landmark case, Lawrence v. Texas, which invalidated a law criminalizing “homosexual sodomy.” Justice Kennedy’s stirring opinion portrayed sexual intimacy as “but one element in a personal bond that is more enduring,” and so it often is. Yet as Professor Dale Carpenter discovered in researching his 2012 book Flagrant Conduct, the protagonists in Lawrence were not in a lasting relationship with one another (and probably did not have sex with one another). Their lawyers acknowledged that they “were never ‘poster people.’”
Neither was McCorvey—for any cause.
Carpenter offers an insightful observation about Lawrence that could apply equally to Roe and McCorvey. The case, he writes:
in all its emotional, social, and legal complexity, is a reflection of life itself. People do indeed lead complex lives. They fall in love, cheat, lie, drink. None of this makes them any less entitled, as Justice Kennedy put it, to “respect for their private lives.” If it were otherwise, there would be very few people—gay or straight—entitled to liberty.
