In a small room in limbo, Mary-Jo Taylor and Percy Norton sat on their couch, staring at the screen in front of
them. The date on Earth was December 13, 1971, and they had a tap on the Supreme Court building in
Washington that would allow them to view the proceedings. Mary-Jo and Percy were not spies; they just had an
interest in politics as a form of comedy.
In life, both Mary-Jo and Percy had been research scientists, devoted to the study of evolution. When they
met each other in limbo, they had become instant friends due to their agreements about how human beings talked
too much. They both felt that human intelligence was a detriment to the species, and that people had lost all
concept of what Nature was like before their giant brains told them to label it all and create rules for how it should
be handled. So naturally, politics was a riot for both of them.
The issue that amused them most was abortion, because while the concept was one highly fundamental in
Nature, there was so much “human dogma” as they called it surrounding the issue that it always lost itself in a sea
of semantics. And now it appeared as though the world of politics was finally getting ready to debate this issue,
and the two disembodied souls were anxious to find out who governs and to what ends when it came to this issue.
“Who’s that?” asked Mary-Jo as a woman on the screen stepped up to the podium in front of the nine-
supreme court justices of the Burger Court.
“That’s Sarah Weddington, the lawyer representing the plaintiffs,” explained Percy. “It’s a class-action suit
filed by an anonymous single pregnant woman and an anonymous married couple against the state of Texas due to
their abortion laws.”
“And this case will actually decide the future of the entire country?” Mary-Jo asked.
“Funny how human intelligence can allow a dozen people in a cramped room to decide the way millions of
others will live,” Percy commented. “But be quiet, she’s beginning her argument.”
On the screen, Mrs. Weddington began to speak. “Mr. Chief Justice, and may it please the court: The
instant case is a direct appeal from a decision of the United States District Court for the Northern District
of Texas. The court declared the Texas abortion law to be unconstitutional for two reasons: First, that the
law was impermissibly vague; and, second, that it violated a woman's right to determine to continue or
terminate a pregnancy. The Texas law in question permits abortions to be performed only in instances
where it is for the purpose of saving the life of the woman. The case originated with the filing of two
separate complaints, the first being filed on behalf of Jane Roe, an unmarried pregnant girl; and the
second being filed on behalf of Jane and Mary Doe, a married couple.”
Mary-Jo turned to Percy. “So in order to decide whether abortion is legal or not, there has to be a lawsuit?
The government can’t just make the decision themselves?”
“Nope,” said Percy. “And it’s not an issue of whether or not abortion is legal, but whether it’s constitutional.”
Mrs. Weddington continued to speak. “Jane Roe, the pregnant woman, had gone to several Dallas
physicians seeking an abortion, but had been refused care because of the Texas law. She filed suit on
behalf of herself and all those women who have in the past at that present time or in the future would seek
termination of a pregnancy.”
“What does it say in the constitution about abortion?” asked Mary-Jo.
“What, you don’t know?” Percy asked. “It’s the second Article, the planned-parenthood article, the section
dealing with abortion. It’s right next to the section about cloning.”
“You don’t have to get sarcastic,” said Mary-Jo.
Mrs. Weddington was talking about the plight of a pregnant woman now, as if the case could be won merely
by looking at woman’s rights issues. “Texas, for example would not allow any relief at all, even in situations
where the mother would suffer perhaps serious physical or mental harm. There is certainly a great
question about it. If the pregnancy would result in the birth of a deformed or defective child, she has no
relief. Regardless of the circumstances of conception, whether it was because of rape, incest, whether she
is extremely immature, she has no relief. I think it's without question that pregnancy to a woman can
completely disrupt her life.”
Percy snickered. “I thought the sole purpose of a woman’s life was to get pregnant.”
“Not anymore, you sexist pig,” Mary-Jo snickered.
As if to justify Mary-Jo’s comment, Weddington explained what the trouble was exactly. “Whether she's
unmarried; whether she's pursuing an education; whether she's pursuing a career; whether she has family
problems; all of the problems of personal and family life, for a woman, are bound up in the problem of
abortion. For example, in our State there are many schools where a woman is forced to quit if she
becomes pregnant. In the matter of employment, she often is forced to quit at an early point in her
pregnancy. She has no provision for maternity leave. She cannot get unemployment compensation under
our laws, because the laws hold that she is not eligible for employment being pregnant, and therefore is
eligible for no unemployment compensation. At the same time, she can get no welfare to help her at a time
when she has no unemployment compensation and she's not eligible for any help in getting a job to
provide for herself. There is no duty for employers to rehire women if they must drop out to carry a
pregnancy to term. And, of course, this is especially hard on the many women in Texas who are heads of
their own households and must provide for their already existing children. And, obviously, the
responsibility of raising a child is a most serious one, and at times an emotional investment that must be
made cannot be denied. So, a pregnancy to a woman is perhaps one of the most determinative aspects of
her life. It disrupts her body. It disrupts her education. It disrupts her employment. And it often disrupts
her entire family life.”
“At what point in the evolution of a species do education and employment become more important than
reproduction?” asked Mary-Jo.
“As soon as they become intelligent,” answered Percy. “It’s no longer survival of the fittest, it’s survival of
the richest. Imagine where Bill Gates would be if he focussed only on making babies.”
“Um...Percy, it’s 1971. Bill Gates isn’t around yet,” Mary-Jo pointed out.
“This is limbo,” Percy reminded her. “Time’s not linear here. Remember World War III?”
Mary-Jo ignored the comment, continuing to pay attention to Weddington’s speech. “And we feel that,
because of the impact on the woman, this certainly--in as far as there are any rights which are
fundamental--is a matter which is of such fundamental and basic concern to the woman is involved that
she should be allowed to make the choice as to whether to continue or to terminate her pregnancy.”
“Why don’t they just ask the fetus if it wants to be aborted?” asked Mary-Jo.
“Because they don’t know they can yet,” said Percy. “Besides, the fetus wouldn’t appreciate it very much.
Imagine every time you complain to your mother about something, she tells you ‘well, you were the one who
chose to be born!’”
“Yeah, that would suck,” said Mary-Jo. “No more of the ‘I didn’t ask to be here’ argument.”
On the screen, the justices began to question Mrs. Weddington. First, Justice Stewart said, “Mrs.
Weddington, so far on the merits, you've told us about the important impact of this law, and you made a
very eloquent policy argument against it. And I trust you are going to get to what provisions of the
Constitution you rely on. The Court cannot be involved simply with matters of policy, as you know.”
“Here we go with the issue of interpreting the Constitution,” said Percy. “That’s how government works.
Instead of passing legislation to deal with the issues of the times, they try to pretend that a document written 200
years ago has the answers, and all you need to do is read it right.”
“Like how people follow the moral codes set forth in the Bible,” said Mary-Jo.
“Let’s not go there,” warned Percy.
Mrs. Weddington responded to the justice’s question. “Your Honours, in the lower court, as I'm sure
you're aware, the court held that the right to determine whether or not to continue a pregnancy rested
upon the Ninth Amendment--which, of course, reserves those rights not specifically enumerated to the
Government, to the people. I think it is important to note that at the time the Constitution was adopted
there was no common law prohibition against abortions; that they were available to the women of this
country. I do feel that the Ninth Amendment is an appropriate place for the freedom to rest. I think the
Fourteenth Amendment is equally an appropriate place, under the rights of persons to life, liberty, and the
pursuit of happiness. I think that in as far as “liberty” is meaningful, that liberty to these women would
mean liberty from being forced to continue the unwanted pregnancy.”
“So that’s what they meant by that?” Percy said sarcastically. “Geez, it was so obvious.”
Now, Justice Byron White spoke up, “And the statute doesn't make any distinctions based upon at what
period of pregnancy the abortion is performed?”
Mrs. Weddington responded. “No, Your Honour. There is no time limit or indication of time,
whatsoever. So I think...”
Justice White interrupted her, “Well, do you make any distinctions?”
“No, sir. I do,” Mrs. Weddington said, “I feel that the question of a time limit is not strictly before the
Court, because of the nature of the situation in which the case is handled. Certainly I think, as a practical
matter though, most of the states that do have some time limit still permit abortions beyond the time limit
for specified reasons, usually where the health of the mother is involved.”
“What's your constitutional position there?” Justice White asked.
“As to a time limit?” Mrs. Weddington asked for clarification.
Justice White explained what he meant. “What about whatever clause of the Constitution you rest on--
Ninth Amendment, due process, the general pattern penumbra--will that take you right up to the time of
“Just what in god’s name is the ‘general pattern penumbra?” asked Mary-Jo?
“It’s whatever your imagination wants it to be, I suppose,” said Percy.
Mrs. Weddington answered Justice White’s question. “It is our position that the freedom involved is that
of a woman to determine whether or not to continue a pregnancy. Obviously I have a much more difficult
time saying that the State has no interest in late pregnancy.”
“Why?” Justice White asked. “Why is that?”
“I think that's more the emotional response to a late pregnancy, rather than it is any constitutional...”
“Did I just here the word ‘emotional’ in a Supreme Court hearing?” Percy asked to no one in particular.
“Emotional response by whom?” Justice White asked on the screen.
Mrs. Weddington was now losing her train of thought for the first time. “I guess by persons considering the
issue outside the legal context. I think, as far as the State...”
Justice White was growing impatient. “Well, do you or don't you say that the constitutional right you
insist on reaches up to the time of birth?”
“Why doesn’t she just say ‘yes’?” asked Mary-Jo.
“Politics,” answered Percy. “For some reason, people are much more willing to accept killing a 4-ounce
fetus than a 4-pound one, and she doesn’t want the judges to start picturing dead babies.”
“Don’t they realise it doesn’t make a difference?” asked Mary-Jo.
“Remember, Mary, they’re still alive. They don’t know what we know,” Percy reminded her.
Mrs. Weddington finally found an answer. “The Constitution, as I read it, attatches protection to the
person at the time of birth. Those persons born are citizens. The enumeration clause, we count those
people who are born. The Constitution, as I see it, gives protection to people after birth.”
“Brilliant,” Mary-Jo commented.
“Yeah,” said Percy. “Notice how she answered the question without actually answering it. That’s good
The debate went on for a while, until they got to the issue of doctors who perform illegal abortions, and
whether or not it’s murder. Justice Brennan was asking the questions now. “All right, then if we're left only
with the ladies’ action, are you suggesting that the declaratory relief they already obtained was not
enough, because that doesn't help terminate the pregnancy?”
“Because they are still subject to the irreparable injury, and have no adequate State remedy,”
Weddington answered. “And, certainly if they cannot litigate their interests while there is a prosecution
pending against the doctor, they will—in many instances...”
“Well,” Justice Brennan interrupted. “I suppose the answer is that if there's a prosecution against the
doctor, there's not going to be any doctor that's going to be available. Is that it?”
Mrs. Weddington answered quickly. “Yes. They cannot even decide to take the risk for themselves
under the declaratory judgment. They must rely on another person to take that risk. But, certainly, the
doctor raised not only his own rights, but the rights of his patients. And those same patients are suffering
the same sort of irreparable injury that the original plaintiffs were suffering.”
Justice Thurgood Marshall now spoke. “Couldn't the doctor raise that same point in the criminal
Weddington answered Marshall quickly. “Yes, Your Honour, he can. But I don't feel it's appropriate to
make those women who are most vitally affected certainly more so than the doctor, who can merely
decide not to perform an abortion, and thereby escape.”
“What are they talking about?” asked Mary-Jo.
“Many women can’t get abortions because doctors won’t agree to it,” said Percy. “It goes to the whole ‘to
what ends?’ part of the question. If the Supreme Court decides abortion is unconstitutional, it will affect the
people in many ways making it harder to get an abortion. If abortion is murder, than doctors who perform
abortions are committing murder, and they’ll be less quick to do it. That’s how the government can stop
abortions from happening. Not through bumper stickers and pro-life picketing.”
“I see,” said Mary-Jo.
“I want to talk about the doctor,” Justice Marshall said. “You said there were two separate issues here.
And the issue involving the doctor, he could litigate everything he's now litigating in the State court?”
“Yes, Your Honour,” Weddington answered. “My point being that these women should not be
compelled to leave it up to a doctor to litigate their interests.”
“Well, he's going to defend himself in a criminal prosecution, isn't he? You can count on him to do
that,” Justice Stewart said.
“Well, I think there are different interests involved,” said Weddington. “And in most criminal
prosecutions the doctors would bring up other problems, such as...”
“‘I didn't do it.’?” Stewart suggested. “Or something like that?”
“Yeah,” Weddington replied. “Or the witnesses disappeared, or it really was for this reason, in this
Justice Stewart continued to ask about this. “But has this defence ever been interposed in a Texas
criminal case--a constitutional defence?”
“Yes, Your Honour.” Mrs. Weddington now cited precedent. “There is one recent opinion, Thompson v.
The State of Texas, which was a decision about a month and a half ago which originated in Houston. A
doctor there was indicted on a charge of abortion. At trial he used only an alibi defence. But on his appeal
he did raise the same constitutional questions that we raised in the Federal courts.”
“The court said that was too late?” asked Justice Stewart.
“No, Your Honour,” Weddington answered. “They could have, but they didn't. They went ahead and
litigated those issues, and our Texas Court of Criminal Appeals—which is our highest court—has now
held that the statute is not vague. And, second, that they specifically did not determine whether or not
there was a right to privacy; but did hold there was a compelling interest. So, in that particular situation,
which is the only situation, a doctor did attempt to litigate the same issues.”
“I’m lost,” said Mary-Jo.
“They’re just talking about precedent as far as the issues concerning doctors who perform abortions go,”
“I figured that much,” said Mary-Jo.
“Well, that’s all there really is,” said Percy. “It just sounds really complicated because they’re lawyers.”
Justice Stewart asked one final question. “And the Texas Court of Criminal Appeals has basically
upheld the constitutional validity?”
Mrs. Weddington gave her final response. “They have held, really, directly in opposition to the Federal
Court opinion from which we are appealing.”
“Bam, three-points!” shouted Percy.
“What? What just happened?” asked Mary-Jo.
“Nothing,” said Percy. “She just basically pointed out the gross inconsistency of the American Judicial
Mrs. Weddington’s time ran out, and now Mr. Floyd stepped up to the podium to speak in opposition to
making abortion legal. He started by bringing up the case that Mrs. Weddington had just discussed. “Mr.
Justice, the Thompson case, which has been cited to the Court did not decide the issue of privacy. It was
not before the court; or, the right of choice issue. The State Court of Criminal Appeals held that the State
had a compelling interest because of the protection of fetal life. They recognized the humanness of the
fetus, and they said we have an interest in protecting fetal life. Whether or not that was the original intent
of the statute, I have no idea.”
“This guy’s real eloquent,” Mary-Jo said sarcastically. Percy just nodded.
“Yet, Texas does not attempt to punish a woman who performs an abortion on herself,” said Justice
Stewart in response to Mr. Floyd.
“That is correct, Your Honour,” said Floyd. “And the matter has been brought to my attention: Why
not punish for murder, since you are destroying what has been said to be a human being? I don't know,
except that I will say this. As medical science progresses, maybe the law will progress along with it. Maybe
at one time it could be possible, I suppose, statutes could be passed. Whether or not that would be
constitutional or not, I don't know.”
“This guy seems to be really proud of not knowing things,” said Mary-Jo.
“It’s a tactic,” said Percy. “He’s not doing a bad job.”
“But we're dealing with the statute as it is,” Justice Stewart continued. “There's no state, is there, that
equates abortion with murder? Or is there?”
“There is none, Your Honour, except one of our statutes that if the mother dies, that the doctor shall
be guilty of murder,” Mr. Floyd said.
“Duh,” said Mary-Jo. “That’s true for every type of operation.”
“What are you, some sort of pro-choice, liberal, poem-writing activist?” asked Percy.
“And when did you become a heartless, conservative, pro-life, tree-chopper?” asked Mary-Jo.
“Touché,” said Percy.
Justice Stewart continued to grill Floyd. “You're asking what is the interest of the State in this litigation;
or, even, what is its purpose, its societal purpose—your answer was, I think, relying on your opinion it was
the protection of fetal life? And I think you also said that that was not, perhaps, its original purpose.”
“Well, I'm not sure of that,” Floyd said nervously. “I...”
“Well, it may be rather important,” Justice Stewart interrupted. “In a constitutional case of this kind, it
becomes quite vital to rather precisely identify what the asserted interest of the state is.”
“I think that original purpose, Mr. Justice, and the present prevailing purpose, may be the same in this
respect,” Floyd explained. “There have been statistics furnished to this Court in various briefs from various
groups, and from medical societies of different groups of physicians and gynecologists, or whatever it may
be. These statistics have not shown me, for instance that abortion is safer than normal childbirth. They
have not shown me that there are not emotional problems that are very important, resulting from an
abortion. The protection of the mother, at one time, may still be the primary—but the policy
considerations, Mr. Justice, would seem to me to be for the State legislature to make a decision.”
“Uh oh,” said Percy. “Here comes the Federalism issue.”
“You mean that whether the abortion issue should be left up to the state or the federal government?” asked
“Exactly,” said Percy.
“Certainly that's true,” Justice Stewart said. “Policy questions are for legislative and executive bodies,
both in the State and Federal Governments. But we have here a constitutional question. And, in deciding
it, it's important to know what the asserted interest of the State is in the enactment of this legislation.”
Mr. Floyd had an answer. “I would think that even when this statute was first passed, there was some
concern for the unborn fetus.”
“You know,” said Percy, “It strikes me that this whole thing is just pointless. Isn’t it the government’s job to
protect and serve the people? How is banning abortion supposed to serve and help the people?”
“What about those un-born people?” asked Mary-Jo.
As if he were answering her, Mr. Floyd jumped to that very issue. “Well, as I say, Your Honour, the... I
don't think the courts have come to the conclusion that the unborn has full juristic rights—not ...not...yet.
Maybe they will. I don't know. I just don't feel like they have at the present time.”
“In the first few weeks of pregnancy?” asked Justice Marshall.
“Sir?” asked Floyd.
“In the first few weeks of pregnancy?” Justice Marshall repeated.
“At any time, Mr. Justice,” Floyd answered. “We make no distinctions in our statute.”
“You make no distinctions whether there's life there or not?” Justice Marshall asked.
Mr. Floyd responded quickly. “We say there is life from the moment of impregnation.”
“And do you have any scientific data to support that?” asked Justice Marshall.
“Ooh, the golden question!” Percy said excitedly. “This is gonna get interesting now!”
“Well we begin, Mr. Justice, in our brief, with the development of the human embryo, carrying it
through the development of the fetus from about seven to nine days after conception,” Floyd explained.
“Well, what about six days?” asked Marshall.
“We don't know,” Floyd admitted.
“But the statute goes all the way back to one hour?” Justice Marshall asked.
Mr. Floyd was flustered. “I don't... Mr. Justice, there are unanswerable questions in this field. I...”
“I appreciate it,” said Justice Marshall.
“This is an artless statement on my part,” Floyd said.
Percy began to crack up, laughing hysterically at the display. “Unanswerable questions! When does life
begin exactly? Hah!”
Mary-Jo just stared at him silently.
“It’s just so funny how nitty-gritty they get,” Percy explained. “As if there’s one exact moment during the
growth of a child in a womb where it ceases to be lifeless cells and takes on a genuine personality.”
“I withdraw the question,” Justice Marshall said.
“Thank you,” Mr. Floyd said, and finished up his argument. “When does the soul come into the unborn—
if a person believes in a soul—I don't know. I assume the appellants now are operating under the Ninth
Amendment rights. There are allegations of First Amendment rights being violated. However, I feel there
is no merit—this statute does not establish any religion; nor does it prohibit anyone from practicing of any
part of any religious group. I see no merit in their contentions that it could possibly be under freedom of
speech or press. The other constitutional rights that the appellant speaks of, I think, are expressed in two
manners: The individual, or marital right of privacy; and, secondly the right to choose whether or not to
abort a child. Now, if those are out of the case, the marital privacy is out of the case. But be that as it
may, neither individual nor marital privacy has been held to be absolute. We have legal search and
seizure. We have the possession of illegal drugs; the practice of polygamy, and other matters. A parent
cannot refuse to give their child some form of education. As far as the freedom over one's body is
concerned, this is not absolute—the use of illicit drugs; the indecent exposure legislation; and that
adultery and fornication are constitutional is beyond doubt.”
“That was quite a speech,” said Mary-Jo.
“It’s a shame how naïve the living are,” said Percy.
“So what happens now? Is it over?” Mary-Jo asked.
“Actually, they argue this again in the actual Roe v. Wade hearing, but that’s not until a year from now,” said
“So what happened to time not being linear?” asked Mary-Jo. “Why don’t we just fast-forward?”
So Percy took the suggestion, and fast-forwarded Earth-time to October 11, 1972, and on the screen they
saw Sarah Weddington again. “Since the last hearing before this Court there have been a few cases decided
that we wanted to draw the Court's attention to, and are covered in our supplemental brief. In addition,
there is a supplemental brief that seeks to point out to the Court some of the changing medical statistics
available regarding the procedure of abortion. For example, that brief points out that the over-all
maternal death rate from legal abortion in New York dropped to 3.7 per 100,000 abortions in the last half
of 1971. And that, in fact, is less than half the death rate associated with live delivery for women. In fact,
the maternal mortality rate has decreased by about two-thirds to a record low in New York in 1971. Now,
in 1971, New York recorded the lowest infant mortality rate ever in that State. From July 1st, 1970, to
December 31st, 1971, out-of-wedlock pregnancies have dropped by 14 percent. We now have other
statistics coming from California and other States which show that not only has the over-all birth rate
declined, but the welfare birth rate has also declined accordingly. As to the women, this is their only
forum. They are in a very unique situation, for several reasons: First, because of the very nature of the
interest involved. Their primary interest being the interest associated with the question of whether or not
they will be forced by the State to continue an unwanted pregnancy. In our original brief we alleged a
number of constitutional grounds. The main one that we are relying on before this Court are the Fifth, the
Ninth, and the Fourteenth Amendments.”
Percy and Mary-Jo listened to all of the new arguments Mrs. Weddington had about statistics in states with
legal abortions, and the plight of the woman now, as well as what it all meant as far as the Constitution was
concerned. When she was finished, the representative for Jane Roe sat down, and the representative for Henry
Wade stood up.
It was Justice Stewart who started asking the questions of Mr. Flowers. “Now, how should this question
be decided, is it a legal question, a constitutional question, a medical question, a philosophical question, or
a religious question, or what is it?”
Mr. Flowers was cool and confident in his response to the very heavily loaded question. “Your Honour, we
feel that it could be best decided by a legislature in view of the fact that they can bring before it the
medical testimony, the actual people who do the research. But we do have...”
“So then it's basically a medical question?” Justice Stewart interrupted.
“Now this is interesting,” said Percy. “Suggesting that perhaps this issue shouldn’t be decided by the
Supreme Court. Perhaps the ‘who governs?’ aspect of the question is about to be addressed.”
Mary-Jo paid close attention as Mr. Flowers spoke. “From a constitutional standpoint, no, sir. I think
it's fairly and squarely before this Court. We don't envy the Court for having to make this decision.”
“So much for that,” said Percy.
Justice Stewart continued. “Do you know of any case anywhere that's held that an unborn fetus is a
person within the meaning of the Fourteenth Amendment?”
“No, sir, we can only go back to what the framers of our Constitution had in mind,” said Mr. Flowers.
“Well, these weren't the framers that wrote the Fourteenth Amendment,” said Justice Stewart. “It came
along much later.”
“No, sir. I understand,” said Flowers, “But under the Fifth Amendment: no one shall be deprived of the
right to life, liberty, and property without the due process of law.”
“Yes, but then the Fourteenth Amendment defines ‘person’ as somebody who's born, doesn't it?”
Justice Stewart asked.
“I'm not sure about that, sir,” said Mr. Flowers hesitantly.
“Well, it does,” asserted Justice Stewart. “Any person born, or naturalized in the United States.”
Both Percy and Mary-Jo were in hysterics. “You see, this is what I’m talking about,” Percy said, “they’re
debating over what exactly constitutes a ‘person’!”
“Yes, sir,” Mr. Flowers said on the screen.
“I suppose that's not the definition of a ‘person’ but that's the definition of a ‘citizen.’” Justice Stewart
Mr. Flowers was getting frustrated. “Your Honour, it's our position that the definition of a person is so
basic, it's so fundamental that the framers of the Constitution had not even set out to define it. We can
only go to what the teachings were at the time the Constitution was framed. We have numerous listings in
the brief by Mr. Joe Witherspoon, a professor at the University of Texas, that try to trace back what was
in their mind with the ‘person’ concept when they drew up the Constitution. He observed, in his
Commentaries, that: ‘Life. This right is inherent by nature in every individual, and exists even before the
child is born.’ I submit to you that the Declaration of Independence, ‘We hold these...’”
Justice Blackmun spoke now for the first time in order to interrupt him. “Mr. Flowers, is it not true that in
this time abortion was not a felony?”
“That's true, Your Honour,” Flowers replied. “But my point was to see the thinking of the framers of
the Constitution, from the people they learned from, and the general attitudes of the times.”
“Well, I'm just wondering if there isn't basic inconsistency there, and let me go back to something else
that you said,” said Justice Blackmun. “Is it not true, or is it true that the medical profession itself is not in
agreement as to when life begins?”
Mr. Flowers was anxious. “I think that's true, sir. But from a layman's standpoint, medically speaking,
we would say that at the moment of conception from the chromosomes, every potential that anybody in
this room has is present.”
“But then you're speaking of potential of life,” said Justice Blackmun.
“Yes, sir,” Flowers responded. “On the seventh day, I think that the heart, in some form, starts
beating. On the twentieth day, practically all the facilities are there that you and I have, Your Honour.”
“This is hilarious,” said Mary-Jo, in a state of dumbfoundedness.
“I think it’s quite brilliant,” said Percy.
“No, I mean that the government thinks its up to them to decide when the soul of a person actually enters the
body,” Mary-Jo explained.
“Oh, then yeah,” said Percy. “If they only knew.”
“Well, if you're correct that the fetus is a person, then I suppose the State would have great trouble
permitting an abortion, wouldn’t it?” Justice White asked of Mr. Flowers.
“Yes, sir,” Flowers responded.
“In any circumstances?” Justice White asked.
“It would, yes, sir,” Mr. Flowers repeated.
“To save the life of a mother or her health or anything else?” asked Justice White for the kill.
This had Mr. Flowers trapped into a corner, and Mary-Joe and Percy could clearly see that there was no
good answer to this. Nevertheless, Mr. Flowers gave it his best shot. “Well, there would be the balancing of
the two lives, and I think that...”
“Well, what would you choose?” Justice White interrupted. “Would you choose to kill the innocent one,
“Ouch,” Percy said.
Mr. Flowers now had his tail between his legs. “Well, in our statute the State did choose that way, Your
“Check-mate,” said Mary-Jo.
“Yup, I think that just about secures the victory for Roe,” said Percy.
Mr. Flowers sat down shortly, and the court gave Mrs. Weddington the last word. The lawyer for the plaintiff
rose to give the final words in the matter. “In this case, this Court is faced with a situation where there have
been fourteen three-judge courts that have ruled on the constitutionality of abortion statutes. Nine courts
have favoured the woman, five have gone against her. Twenty-five judges have favoured the woman,
seventeen have gone against her. Nine circuit judges have favoured the woman, five have gone against
her. Sixteen district court judges have favoured the woman, ten have gone against her. No one is more
keenly aware of the gravity of the issues or the moral implications of this case, but it is a case that must be
decided on the Constitution.”
“So I guess this means that when it comes to abortion, it’s the judiciary that governs?” asked Mary-Joe.
“Certainly,” said Percy.
“But to what ends?” asked Mary-Joe.
“I think you’re about to find out,” said Percy.
And as she finished her short speech, Sarah Weddington answered the question. “We do not disagree that
there is a progression of fetal development. It is the conclusion to be drawn from that upon which we
disagree. We are not here to advocate abortion. We do not ask this Court to rule that abortion is good or
desirable in any particular situation. We are here to advocate that the decision as to whether or not a
particular woman will continue to carry or will terminate a pregnancy is a decision that should be made
by that individual, that in fact she has a constitutional right to make that decision for herself, and that the
State has shown no interest in interfering with that decision.”
And that was that. The case was closed, and a year later, the decision would be handed down that a woman
had the right to choose whether or not to have an abortion.
“So I guess what that means is that they limited their own ends by saying the government doesn’t have the
jurisdiction to go that far in governing,” Mary-Jo spoke for her own clarification.
“Exactly, and I’ll bet John Locke would agree with that,” said Percy.
“John Locke, the philosopher?” asked Mary-Jo.
“Yeah, he was pretty much the main influence in how the framers actually thought a government should
work,” Percy explained.
“So why don’t you go ask him?” asked Mary-Jo. “He’s in limbo too, right?”
“No,” said Percy, “He just left. Began his new life just a few days ago, actually. Yup, he’s inside his new
mother’s womb now.”
“Really?” asked Mary-Jo. “At what point did he enter the fetus?”
“Oh, about the fifth month,” said Percy. “He wanted to start early. Personally, the next time I go back I’m
going to skip the whole fetal stage, and wait until my body is at least six weeks old before I enter it.”
“Hey, whatever you decide,” said Mary-Jo.
“That’s the way it works,” said Percy.
Unborn Fetuses v. The Constitution
Kem Stone - May 2002