In the aftermath of the Supreme Court’s dismantling of Roe v. Wade, we’ve all witnessed one anti-women’s rights assault after another. There was, last week, a glimmer of hope in the abysmal state that is current-day Texas when a trial court judge issued a TRO allowing a pregnant woman to obtain a medically-needed abortion.
A TRO is a temporary restraining order, issued by a court, upholding the right of a plaintiff to obtain the remedy she needs right away to avoid irreparable injury to her. In the Texas case, the plaintiff was an expectant mother who very much wanted to give birth to a healthy child, but medical professionals had sadly concluded that her fetus would not survive and her own health and future fertility could be irreparably damaged.
In my view, the TRO was justified and the trial court reached the right decision. But the Texas state attorney general intervened to stand in the way, and the Texas Supreme Court supported his position. The result: The plaintiff left the state of Texas to obtain the abortion she needed.
This appalling state of affairs reminded me of what happened in Chicago over 50 years ago. I was working as a young Legal Aid lawyer in Chicago, co-counsel in a lawsuit filed in U.S. District Court on February 20,1970, that challenged the constitutionality of the Illinois abortion statute,
I suddenly acquired a new client in March 1970 when I got a phone call from one of our Legal Aid branch offices. The mother of a teenage rape victim had come into that office to report that her daughter had been raped and was now pregnant. The mother asked whether we could do anything to help her daughter get a legal abortion.
This Black teenage girl, whom I dubbed Mary Poe, had been beaten and raped by two boys in her neighborhood, and her resulting pregnancy had been confirmed by a local physician. I was already representing two other women, adult women we called Jane Doe and Sally Roe, but this young woman was different. She was a brutalized 16-year-old victim of rape, and her mother didn’t want her to be forced to bear the result of the rape.
I immediately began preparing documents to allow this Black teenager to intervene as a plaintiff in our case. On March 19, I filed these documents on behalf of Mary Poe, seeking to obtain “a legal, medically safe abortion,” denied at this time because her doctor had “advised her that under the language of the challenged statute” he could not “perform such an operation upon her without fear of prosecution.”
The new Complaint joined the original plaintiffs’ prayer for relief and added the request that the court “enter a temporary restraining order [TRO] enjoining the defendants from prosecuting [one of our plaintiff physicians, Dr. Charles Fields] under the challenged statute if he terminates her current pregnancy on or before March 27,1970. Unless this relief is granted by the court, this plaintiff will suffer irreparable injury.” Dr. Fields had examined Mary Poe and concluded that her pregnancy could be safely terminated until on or about March 27.
The district judge presiding over our case, William J. Campbell, was on vacation, and we turned to another district judge, Edwin Robson, who was reviewing documents in Campbell’s absence. So on March 23, I filed a motion for leave to intervene on behalf of Mary Poe and for a TRO allowing her to receive a legal abortion. Robson ordered the defendants to file briefs by March 26 and set our motion for ruling on March 27. On that date, the last day Dr. Fields said the pregnancy could be safely terminated, Robson finally granted the motion for leave to intervene, but he denied our motion for a TRO. He continued that motion until Campbell’s return in April.
Back in my office, I prepared Mary Poe’s appeal to the U.S. Court of Appeals for the Seventh Circuit, which sat in a courtroom several floors above the district court courtrooms. As soon as the appellate court allowed me to, I argued before Judge Luther Swygert, chief judge of the appellate court, appealing the Robson ruling that denied Mary Poe a legal abortion.
Judge Swygert ruled on March 30: “[T]his matter comes before the court on the emergency motion of [Mary Poe]. Upon consideration of the motion…IT IS ORDERED that a temporary restraining order be entered enjoining defendants…from prosecuting plaintiff [Dr. Fields] under [the Illinois statute we were challenging], if he terminates the current pregnancy of [Mary Poe].”
I remember standing in the courtroom to hear this order spoken out loud by Judge Swygert, a brilliant and fair-minded judge. He became my enduring judicial hero ten months later, when he issued the ruling upholding our constitutional challenge, in January 1971.
We’d won a TRO allowing Mary Poe to get a legal abortion!
When Judge Campbell returned to his courtroom in April, he was confronted with the appellate court’s decision, and there was no way he could change it. But he went on to oppose us at every possible turn as we proceeded with our lawsuit. I describe everything that happened in my forthcoming book, which I’m hoping will appear in print in 2024.
In the meantime, I’ll state my unwavering belief that Campbell was an early version of the “robed zealots, driven by religious doctrine, with no accountability,” described by Maureen Dowd in her opinion column in The New York Times on December 16th. In this column, “Supreme Contempt for Women,” Dowd clearly indicts “the Savonarola wing of the Supreme Court,” who couldn’t wait “to throw [Roe v. Wade] in the constitutional rights rubbish bin.” Judge Campbell would have fit right in.
susanjustwrites
Susan Just Writes 