Roe’s Companion

By Jack Quirk

On June 7, 1965, Sandra Race, the daughter of an Atlanta sanitation worker, married one Joel Lee Bensing. He was a part-time construction worker she had known for about a week. She was 17-years-old at the time.

Eleven months after the marriage, Sandra gave birth to Joel Lee, Jr., her first child. Joel was followed by a daughter, April, in November of 1967.

Joel Bensing, Sr., worked only sporadically during the marriage, and frequently found himself in jail. The marriage underwent on and off separations. Sandra began to unravel emotionally, and at one point became a mental patient in a Georgia state hospital. Because Sandra could not care for her children due to her poverty and circumstances, they were put into foster care. A third child, born July 19, 1969, was placed for adoption. At that time she had been abandoned by her husband and thus compelled to live with her indigent parents and their eight children. [2] The couple later reconciled.

In 1970 she was 22-years-old, and pregnant again. She approached the Atlanta Legal Aid Society to obtain a divorce from Mr. Bensing, and to reclaim her children from foster care. Court records indicate that she was also seeking an abortion of her pregnancy. (To this day, Sandra, now Sandra Cano, denies that such was ever her intention.)

At that time, abortion was a crime in Georgia, except in three circumstances:

“(1) A continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or

“(2) The fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or

“(3) The pregnancy resulted from forcible or statutory rape.”

There were additional requirements. First, the woman had to be a resident of Georgia, a condition Sandra fulfilled; second, a woman’s physician was required to state in writing that one of the three conditions mentioned above was satisfied, together with the written concurrence by at least two other physicians, based on their own personal examinations of the woman; third, the abortion had to be performed in a duly licensed hospital; and, fourth, advance approval by a committee consisting of at least three members of the hospital’s staff was required. There were also two other provisions of the Georgia law, not relevant to Sandra’s case, requiring certification in rape cases, and for a judicial determination of the legality of a proposed abortion upon petition of a judicial circuit law officer or of a close relative of the unborn child.

In March of 1970 Sandra applied to the Abortion Committee of Grady Memorial Hospital in Atlanta to obtain an abortion. Her request was denied, because her case did not fall under one of the three exceptions listed in the Georgia law making abortion a crime.

She brought suit in the United States District Court, asking the court to declare the Georgia law unconstitutional and to issue an injunction against the named defendants prohibiting enforcement of the law. She filed her case under the name “Mary Doe” in order to protect her identity.

A three-judge panel was convened. The court concluded that restricting abortions to the three circumstances listed in the Georgia law was an unwarranted infringement of her constitutional rights to privacy and personal liberty, and issued a declaratory judgment to that effect. But it did not issue an injunction or strike down the regulatory scheme of Georgia’s abortion law.

Even though Sandra’s access to an abortion could no longer be restricted on the basis of Georgia’s criminal statute under the District Court’s ruling, the decision was made to appeal directly to the Supreme Court, under a specific law for that purpose, in order to obtain the injunction she sought and to strike the entirety of the Georgia law. The Supreme Court struck down the entirety of the regulatory scheme in Georgia, but did not issue an injunction, deeming that the Georgia authorities would comply with the Court’s ruling without a direct order.

But the Court did not linger on the question of a constitutional right to an abortion. It didn’t need to. It had already passed on that question in the companion case: Roe vs. Wade. Sandra’s case, known to history as Doe vs. Bolton, came to be the lesser known of the two abortion cases decided by the Supreme Court at the same time.

It is to be wondered how Sandra’s history would have been different if a completely pro-life regime was in place in Georgia in the early 1970s. To be sure, there would have been even greater restrictions on abortions legality. There certainly would have been no allowance for abortion because the “fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect….”

But there would have been social supports in place to keep Sandra from desiring the termination of her pregnancy. To begin with, the desperate poverty she confronted would not have been allowed to continue. A true pro-life society could not tolerate circumstances where parents are compelled to give up their children due to economic circumstances. A society genuinely concerned with human life would do everything possible to ensure that parents and children were not separated because of the medical condition of the parents. To be pro-life means more than seeking to maintain people in mere existence. It is to seek a quality of life for every person worthy of human dignity. Sandra was not afforded such an opportunity.

What social and political changes should be sought by a genuine pro-life movement? A good beginning would be to look at what happened to Sandra, and decide what measures could have been enacted and implemented so that she would never have been a plaintiff in the companion case toRoe vs. Wade.