Linda J. Wharton

“I knew there was something off in a world where women played one narrowly-prescribed role and men played another.”

Interviewed by Judy Waxman, July 9, 2020

JW:  Today is July 9th, 2020, and I am Judy Waxman. We are conducting this interview over Zoom because it’s during the pandemic. Why don’t you give me your whole name, when and where you were born?

LW:  My name is Linda J. Wharton. And I was born in Camden, New Jersey.

JW:  What was your life like before the women’s movement?

LW:  I grew up in a working-class family in southern New Jersey. My parents met when they were working at RCA, one of the major employers in Camden in the 1950s.  My father’s mother was also working there, and she introduced my parents. They then moved out to Cherry Hill, which is a suburban town in New Jersey, in Camden County. 

Most of the time my mother worked outside the home. She was either holding down a part-time job or a full-time job in order to supplement my father’s income. I think that had a very strong influence on me because as a young child, I observed my mother working 24/7. My father, though he worked hard, would come home and dinner was prepared for him, and he then relaxed, and my mother just kept going. I remember observing all of this and feeling the unfairness of it, though my mother took it in stride; it wasn’t because she complained. That dynamic informed my early instincts about feminism. 

I knew there was something off in a world where women played one narrowly-confined role and men played another. My perception was it was terribly unfair to women. I graduated from high school in 1973 and college in 1977 so I was a little bit young to be involved in the early 70s part of the feminist movement, but I was very well aware of it. In high school I remember reading Germaine Greer’s book The Female Eunuch. I loved that book, it resonated with me. I read Friedan’s The Feminine Mystique as well, but the Greer book just spoke to me more powerfully. 

I went to Bryn Mawr College and did an in-person interview with  Betty Vermey, who was Bryn Mawr’s renowned admissions director at that time; she asked me what book had most influenced me. And I said, The Female Eunuch. She sat up in her chair very impressed and then we proceeded to have a long conversation about it. More than anything, I wanted to get into Bryn Mawr. Part of that was the fact that it was a women’s college and had this amazing history in terms of connection with the suffrage movement and the movement to broaden women’s educational opportunities, so I was very, very thrilled to go there. 

When I got to Bryn Mawr in the fall of 1973, that’s when I became more aware of the women’s movement from classes that I took, from interactions with my peers, and reading that I did. I don’t recall there being a lot of organized feminist organizations on campus and I think that may be because there was a sense that because we were at Bryn Mawr, we were all on board and many students didn’t really see a need for these groups. I don’t know for sure.

In terms of college, I have memories of a few things that really impacted me. First, a major focus of one influential course was women’s representation in the media. I did a paper that required me to do archival research. I went to the Philadelphia Free Public library and looked at many old newspaper articles over a course of decades and wrote a very long analytical paper about the depiction of women in the media, particularly in sports. I’ve always been interested in the topic of women in sports, because I had played sports in high school and had been very involved, less so, at Bryn Mawr. I played field hockey one year but otherwise was not involved in organized sports. 

Seeing the images of women and the way they were depicted as “delicate flowers” and “reproductive vessels” moved me in the direction that I was headed. The second thing I remember is having an opportunity the summer between my junior and senior years of college to go for a week and live in Manhattan with a Bryn Mawr alum who had strong connections to Ms. Magazine. I did this for a week; it was thrilling for me. She lived on Central Park West; it wasn’t really an apartment, it was more like going into a house inside this huge building.

Each day, another Bryn Mawr student and I went to either the Ms. office to talk with the editors and sit in on meetings, or to visit some other newspaper or magazine in New York. We went to The New York Times, we went to the New Yorker and we got to meet all of these amazing people, but especially the women at Ms. And at the time, a number of Bryn Mawr alums were at Ms. Mary Thom was one of them, they were some of the early writers and editors of Ms. magazine. I met Gloria (Steinem) there for the first time. So, it was a really influential experience. I decided I was going to be a journalist and I was going to write about feminist issues – this was my career path. 

I also became interested in photography at that time and I began taking photographs. It connected me to the movement happening out there, I began reading Ms. at that time, and I have kept up my subscription ever since. That same summer I got an opportunity through Bryn Mawr’s Career Services to work on a publication called The Illustrated Women’s Almanac. It was a whopping $6.95. It’s comprised of 12 “How to” handbooks for women: The Health Adviser, The Psychological Adviser, The Sex Adviser, Motherhood, Education and so forth. There’s a section on reproductive rights; there’s a legal adviser. And in the back are all sorts of resources. 

I was hired to write the listings of women’s organizations in Philadelphia. There were no computers, I had to find these organizations by looking them up in the telephone directory and then finding out more by calling and requesting information. I went into the city, I met people, and I wrote a number of those entries. I loved that experience. It was another entry into this world of women’s health issues, women’s legal rights issues in general. It influenced me a lot in terms of thinking about my future career choices. 

And I think it’s actually through the Women’s Almanac that I became aware of women’s legal rights organizations, and specifically, in Philadelphia, the Women’s Law Project, founded in 1974. This would have been the summer of ‘76, the bicentennial summer, when this all happened for me. I was so intrigued with this notion that there were these organizations dedicated to advancing women’s legal rights. That opened up another career alternative to me. I’d been thinking about journalism, but now I began thinking about law.

JW:  Did you go right to law school?

LW:  No, I did not. I remained a bit uncertain. I took a year off and worked at a law firm in Philadelphia as a legal assistant, which was at the time, a fairly common thing to do. My roommate, who went to Yale Law School, did the same thing. She worked in Manhattan. It provided a year to think a little bit more about the choice and to live in the city. I had a Bryn Mawr friend who was my roommate – I lived in Society Hill. And also, it allowed me to raise some money for law school, because my parents had struggled to help with Bryn Mawr. They had never anticipated that I would go to a school that cost so much money and though I did get a substantial scholarship there was still a contribution they needed to make. 

It was clear to me that if I was going to law school, I was going to pay for it myself. I wouldn’t even think of asking my parents because they had really sacrificed to help me go to Bryn Mawr and I was and am eternally grateful for that. It was a helpful year:  I learned from working at a big law firm that it was not the kind of law that I wanted to do long-term. I was impressed with the quality of the lawyering and the people that I met there. I saw that they were hard working, smart, good lawyers and some of them I became friends with. So that’s what led me ultimately to make the decision to go to law school. 

I went to Rutgers Law School. Though I had been living in Pennsylvania for that year, I was still a New Jersey resident. That is the law school I knew that I could afford– that was critical to me. I wonder now if that was a little short-sighted not seriously considering other options? But I was so clear that I had to go somewhere where I could pay for the bulk of it and not incur tremendous loans. I also was pretty clear that if I was going to stay in law school and ultimately pursue a career in law, I wanted it to be in public interest law. I wasn’t planning to work at a big law firm long-term, so I wasn’t likely to command a huge salary. 

So, I went to Rutgers and ultimately I’ve been very satisfied with that choice. Rutgers was and is a very good law school. I met Ann Freedman at Rutgers, who was one of the founders of the Women’s Law Project, and with Tom Emerson and a few others e wrote a seminal law journal article in the Yale Law Journal about the theoretical legal underpinnings of the federal ERA. That’s a very well-known, influential Law Journal article. 

When they graduated from Yale Law School, Ann, Harriet Katz and Barbara Brown, who were her Yale classmates, came to Philadelphia and founded the Women’s Law Project in Philadelphia because Pennsylvania had a state equal rights amendment. They wanted to place the Women’s Law Project in a state that had an equal rights amendment so they could litigate under a state equal rights amendment and establish important precedent under that state equal rights amendment. 

By the time I got to Rutgers in ‘78, Ann had left the Women’s Law Project and was teaching at Rutgers; we really hit it off. I took her sex discrimination law class and her family law class, she became my mentor. We have maintained a friendship now over forty years. I just talked to her last week and she still teaches at Rutgers. She’s been there this whole time. Her mentorship really set me on my path, clarified that I wanted to work in public interest law and that I’d really love to work at the Women’s Law Project. Ann supported me in that, I did some research with her and I worked with her on various projects. She’s a very nurturing, good person.

JW: Was Justice Ginsburg at Rutgers?

LW:  No, she had already left. 

I did very well at Rutgers Law School and was very fortunate to get a clerkship with the Third Circuit. I clerked for Judge Dolores Sloviter, who was the first woman on the United States Court of Appeals for the 3rd Circuit. She had been a Carter appointee, and I clerked for her in her second year on the bench. It was a tremendous honor to get to be her clerk. I think I was the first Rutgers-Camden student ever to clerk at that level. Clerking at the circuit court level is a fabulous experience. You’re able to help a judge think through these important opinions. It’s an amazing learning experience and such a great privilege. 

One of my summers between two L and three L years, I worked at the Dechert law firm, one of the large law firms in Philadelphia. It was really tough to get a paying position at a public interest organization, but I got this very generous offer to go to Dechert, and I took it, in part, driven by financial needs. I actually had a choice among a lot of the top law firms in Philadelphia but chose Dechert because the firm did a lot of pro bono work and were very generous in encouraging their associates to do pro bono work. The Women’s Law Project didn’t have any positions for a full-time attorney at the time. 

Philadelphia has a healthy public interest community. It’s not as large as the D.C. public interest law community, or the New York public interest law community. But I enjoyed my summer at Dechert, my thinking was that I’ll go there and get some training in the law. These were very good lawyers working there . I’d have an opportunity to do some pro bono work. I was only there for a short time before I left and went to Rutgers Law School where I taught legal research and writing and some other courses at the law school although not as a full-time faculty member. My oldest child was born at that time and I wanted the flexibility to work on a more part-time basis. But after a couple of years I went back to Dechert part-time. 

Initially the firm wasn’t all that receptive to this but as the years went on, the big firms became more receptive to part-time work. During that time Dechert was asked by the Women’s Law Project, and, in particular Kitty Kolbert, who was a staff attorney at the Women’s Law Project, to join them in a case against Operation Rescue. Operation Rescue is an anti-choice organization led at the time by a man named Randall Terry. In the 1980s they began assembling large numbers of anti-choice people in major cities to protest at abortion providers. They would announce on a Friday what city they were going to and then arrive in really large numbers very early in the wee hours of the morning, on a Saturday or some other day. 

There was very little notice.  Three, four, five hundred people would arrive, and it went beyond simple, permissible First Amendment protest. They would block ingress and egress at the city’s abortion providers. They would harass patients and clinic staff coming into the provider and generally wreak havoc for most of the time that they were there. So, Kitty came to the Dechert firm and asked if we would support the Women’s Law Project in obtaining an injunction to stop activity that went beyond permissible First Amendment activity. 

Mary McLaughlin, a Dechert partner, who later became a federal district court judge, was very supportive. She immediately called me and said,”I think you’d be interested in this.” I said, “Absolutely.” We worked on that case and got an injunction in federal court. And at this point, I don’t remember what the specific causes of action were, but we had federal claims. The judge was Clarence Newcomer. We were successful before him in getting the injunction. It’s called Roe v. Operation Rescue. 

We got the injunction and then Operation Rescue proceeded to violate it every single Saturday for weeks and months. We then had to get the federal marshals to come in and arrest them. This went on for weeks, months where we had the injunction and they just violated it and the U.S. Marshals came every Saturday and arrested them. Eventually, it ended. But we accumulated enormous amounts of attorney’s fees for the Women’s Law Project, which we were never able to obtain but we had the injunction, and to that extent, it was a success, and I think we did prevent some of the more egregious behavior by the injunction. 

I believe this activity was happening in D.C. I know it was happening in New York as well. That was my first direct experience with the Women’s Law Project and how I met Kitty Kolbert, Cary Nicholas and Rita Bernstein, the lawyers on staff at the Women’s Law Project at the time.  When a position opened at the Women’s Law Project, within a year or so of that time, I heard about it. By the way, I was pregnant with my second child while doing some of the legal work in the Operation Rescue case and going to the clinics seven or eight months pregnant with Operation Rescue people screaming at me. Very odd. 

I called the  Women’s Law Project and was very candid and said, “I assume you’re looking for someone to start immediately. I’m looking to take off for about three months after giving birth” They said, “Come and talk to us anyway.”  I went and I interviewed. They were familiar with me because of my work in Roe v. Operation Rescue so that was a very positive thing. I got a call from Cary Nicholas. She said, “We really think you’re the right person, so take your three months. We can cope until September.” So, in September of 1989, I started at the Women’s Law Project and stayed there until ‘97.

JW:  Could you talk about your involvement in reproductive health?

LW:   I started at the Law Project in 1989. This is when the Pennsylvania Legislature had proposed amendments to the Pennsylvania Abortion Control Act. Those amendments were ultimately passed and became the subject of the legal challenge in Planned Parenthood v. Casey, which was decided by the Supreme Court in 1992. I landed at the Law Project at just the right time to work on this case. My first few months were spent going to the Pennsylvania legislature with various colleagues from the Pennsylvania reproductive justice community, including Sue Frietsche, who was then at the Pennsylvania ACLU. 

We went into the Pennsylvania legislature and attempted to convince legislators not to pass these horrible provisions. It’s not a pleasant task talking to anti-choice members of the legislature and trying to reason with them – it doesn’t work. They insult you or they just don’t get it. They don’t want to listen. We accomplished very little in our efforts to amend the bill or take out various provisions entirely. So ultimately, it passed and among the provisions were a forced waiting period of 24 hours, a requirement that women notify their husbands before obtaining their abortions, a parental consent provision that is coupled with the waiting period so that minors have to first notify their parents and then they have to come in to the clinic and hear the anti-choice lecture and wait 24 hours. So, they are essentially combined provisions. A very narrow definition of medical emergency and various other very problematic, burdensome provisions were added.

We challenged all of them as violative of the standards of Roe v. Wade. It went to trial; I was part of the trial team. We had support from Pepper, Hamilton, and Sheets, and a partner named Tom Zemaitis. The trial was largely done by Tom and Kitty, who were the lead counsel in the trial phase. And I was more of a second chair in the trial because they were really seasoned: Tom was a partner at Pepper, Kitty had done abortion rights trials before, she had been lead counsel in the Thornburg v. American College of Obstetricians and Gynecologists, which she had also argued in the Supreme Court. Pennsylvania repeatedly passes very draconian abortion laws.

We won in the trial court. It was a very thorough but straightforward opinion. There were three hundred and fifty fact findings and the judge (Daniel Huyett) applied the standards of Roe and struck down the waiting period, the husband notification provision, the parental consent provision, the medical emergency provision and the record keeping and other various provisions that we challenged. It was a wonderful opinion, very careful, straight-forward application of the principles of Roe

The Commonwealth of Pennsylvania  was very unhappy with that result and they took it to the United States Court of Appeals for the Third Circuit where a three-judge panel that heard the case. Kitty did the oral argument before the Third Circuit and the opinion we got was quite shocking. They refused to apply the Roe standards, and I believe it was the first time that any lower court since 1973 had refused to apply the standards of Roe. They said, we believe that when we look at the current composition of the court, we don’t believe that a majority of the supreme court would continue to apply the Roe standard. We believe that they would apply an “undue burden” standard. 

By a vote of two to one they then upheld everything except the husband notification provision, which they found unduly burdensome under Justice O’Connor’s articulation of undue burden in her past opinions. One judge Samuel Alito (then on the Third Circuit), dissented to say that the husband notification provision was not unduly burdensome. And for that reason, he dissented. This was shocking and made headlines everywhere. It set us up for the Supreme Court. 

We felt an awesome responsibility and met with our clients: five clinics and one physician. We laid out the options: do nothing, go back to the Third Circuit en banc and hope, even if we lose, we can draw some supportive dissents, or just go right to the court and squarely ask the question, is Roe still the law of the land? 

The clients unanimously voted to take the case to the Supreme Court, they thought this was a grievous injustice to women everywhere across the nation and so that’s what we did. It was scary. But, as a younger lawyer in my mid 30s I felt some relief that the clients had decided this, and they were so clear about it. So, we went forward. The Pepper firm continued to be involved through some younger associates after Tom Zemaitis left the firm. I then stepped into Tom’s shoes and played, with Kitty, the role of co-lead counsel at the Supreme Court level. Kitty did the oral argument, but we shared the briefing 100% and I was there at the counsel table for the Supreme Court argument. 

It was a very challenging time. I had a second child who’d been born in September of 1989. She was three and I had a child who was just two years older. I was going to New York frequently to work on the briefs. We did most of the brief writing at the offices of the ACLU in New York. We spent weeks writing them, rewriting them, having law professors and legal scholars read them . It was constant, thrilling, difficult work. There’s also a tremendous amount of media interest. In addition to the litigation there was the public education piece, all of these things are going on. And during this time, Cary Nicholas left the law project and I became the acting managing attorney, having only been there for six months. It was a wild time.

JW:  Were you still cooking dinner every night?

LW:   No, fortunately I have never been in the position my mother was in. My husband to this day does the lion’s share of the cooking!

JW:   So, you were in New York and it was a wild time.

LW:  We were surprised by the Supreme Court’s decision. We actually were expecting that by a vote of five to four, the Supreme Court would overturn Roe. If Roe was to be overturned by the Court (as we believed it ultimately would), the timing for overturning it then would have have been advantageous in that it would have occurred in the spring leading up to the 1992 presidential election. We thought politically, such action by the Court then would help elect Bill Clinton. But they didn’t do that. In conference, we now know that five votes were initially cast to overturn Roe and Chief Justice Rehnquist actually drafted a majority opinion overturning Roe. I have a copy of it now. But the Supreme Court process allows for anyone, after casting their vote, to change their mind up until the opinion is released. 

Sometime in May, Justice Kennedy wrote a note to Harry Blackmun – it’s not an email message, it’s a handwritten note – telling him that Kennedy would like to see him and had some welcome news. Apparently they went out into the garden of the Supreme Court and Kennedy told him that he’d decided to change his vote to uphold everything except the husband notification provision but to not overturn the core of Roe and instead to substitute an undue burden standard, which in practice is a little bit less demanding than the original O’Connor, undue burden standard. 

Kennedy joined forces with Justices O’Connor and Soute; Justices Steven, and Blackmun who would have retained Roe in its entirety. It’s a mixed bag. The essence of Roe is retained, bans on abortion are not permissible and undue burdens are not permissible. But this new undue burden standard is very problematic. It’s a subjective standard that can be manipulated by judges and justices who are not supportive of the right, it allows the states to pass lots of restrictions. 

On the other hand, Kitty and I wrote an article about this in the Yale Law Journal pointing out that if you read the opinion closely, there are aspects of the standard that are very positive, and if it’s correctly applied so that it has some teeth, it could be a decent standard. It’s not the Roe standard which I much prefer. Sadly, the standard has been applied in very problematic ways and will continue with the current court if they retain that standard. And it looks like after the June Women’s Medical Center this term, we will have the undue burden standard for a while.

JW:  Some people I’ve talked to have said this June Medical case kind of does to Casey what Casey did to Roe. Do you have an opinion on that?

LW:  I think that’s true of the Roberts’ concurring opinion, yes. I’m sorry to say that I read it quickly, and I want to go back and read it with carefully with my yellow marker. Roberts writes a separate concurring opinion He cast his vote to adhere to the outcome in Whole Woman’s Health and to strike down these laws. He writes separately, I think, to ensure that the undue burden standard is going to be applied in a more watered-down way. He rejects a balancing analysis, as I understand it, from my reading. He says you have to show a substantial obstacle, which is difficult to show and expensive in terms of litigation and really challenging. He does damage to the standard and does so intentionally.

JW:  How long did you stay at the WLP before moving to teaching full time?

LW:  I left the Women’s Law Project in ‘96 or ‘97. I later went to Rutgers Law School and I was teaching some courses in family law and abortion rights. I was also running a small clinical program involving my other passion, Title IX. It was a sports and gender equity legal clinic that I was trying to get off the ground at Rutgers Law School, but I was on soft money and trying to get them to support it with money. I did that for a couple of years until I got an opportunity to come here to Stockton University, which is one of New Jersey’s state institutions of higher education, and I teach in the political science program. 

When I came here, it was a three-year visiting position for someone who would teach constitutional law.  Stockton had a tradition of having a practicing lawyer come to Stockton who would Constitutional Law based on their practical experience. Frank Corrado had the position before me. He had been a chair of the ACLU board in New Jersey and a friend from law school. He called me, told me how much he loved it there and that I should visit. So, I did, and they hired me. 

At the end of my three years the new president said, along with the Political Science program, wanted it to be a tenure line. They wanted me to stay. I got tenure and became a full professor. So now it’s 2020 and I’m still here. I’ve done all of my writing in law journals.. I’m also the pre-law adviser. I love being here, I love the opportunity to teach young people. I teach a Women in the Law course. I teach civil liberties and I also build a big sex discrimination component into that course. 

Most of my writing has been in the area of reproductive rights. I also have a law journal article that I think you referred to earlier that’s about state equal rights amendments; my thinking is grounded in having been at the Women’s Law Project and seeing how effective a state ERA can be.  I’ve also become somewhat involved in the movement to finally get the federal ERA passed. I’ve been involved in that for a while, but more recently in the ERA coalition and the Legal Task Force that they’ve formed. So that’s been a pleasure and it brings everything full circle.