Chapter 8
Radicalization of Reform
The suppression of abortion in the decades immediately preceding Roe v. Wade was unique in the history of abortion. That repressive system, and its deadly results, played a crucial role in producing a movement to legalize abortion. The abortion rights movement arose out of the deteriorating conditions of abortion and the frustrations of both women and physicians. As part of their campaign to liberalize state laws, reformers exposed the new and devastating conditions of abortion as intolerable and discriminatory. The social movement to decriminalize abortion drew upon and brought into the open a longstanding acceptance of abortion.
Explanations for the transformation of abortion law that point to media coverage of celebrated abortion cases or changes in medical technology or emphasize the personalities of the Supreme Court justices all simplify the origins of legal and social change. They cannot explain the strength of popular support for legal change. Nor can they explain why members of a socially conservative profession, the medical profession, initiated reform or why the majority of that profession came to support the radical demand for repeal. The abortion cases reached the U.S. Supreme Court as a result of a grassroots movement in which women as well as doctors played a prominent role. The court's decisions arose out of a particularly repressive period and were rooted in both the historical acceptance of abortion and in the contemporary resistance to the law.
The discriminatory and dangerous abortion system bred fear, frus-
tration, and ultimately a movement to change the laws governing abortion. Despite the hazardous character of abortion, women were not the first to articulate publicly and politically their dissatisfaction with the law. In the mid-1950s a small group of physicians and public-health workers initiated the earliest efforts to reform the abortion laws. The hospital system itself, which prevented doctors from providing abortions to patients and forced them to care for the damages resulting from illegal abortions, generated physicians' demands for legal change. Medical reformers soon linked up with leaders in the legal profession, and this professional alliance advocated reform of abortion law. For professionals, the solution to the abortion problem was enlarging the legal space in which physicians could perform abortions.
As women entered the professional abortion discourse they brought their own experiences and insights to bear on political analysis. Feminists retheorized the meaning of abortion. Abortion, as the new feminists analyzed it, was more than an individual need, private crisis, or public-health problem; it was a collective problem for all women. Furthermore, the criminal status of abortion was a fundamental feature of the subordination of women. Feminists found that the assumptions underlying the law and medical practice toward abortion denied women's right to make decisions about their own reproduction, denigrated their moral judgment, and limited their freedom.
Women and professionals looked at the abortion problem from different standpoints, but women, as patients and political actors, moved physicians to a more radical political position. As they had for generations, women insisted that the medical profession listen. Though these "discussions" often took the form of nasty debates, even pickets, much of the medical profession heard the feminist message, just as they had individually heard their individual patients' demands. Now, however, communication and negotiation occurred in public forums between institutions, organizations, and mass movements rather than in conversations in physicians' offices. What had been the private problem of abortion had become political, and what had been the subject of personal discussions had turned into a public debate.
The oppressiveness of the postwar years alone did not produce a movement to legalize abortion, as oppressiveness had not in earlier decades. The changing political context of the period helped produce a mass movement for women's reproductive rights. A movement for abortion rights developed at a time when many in the Civil Rights and antiwar movements mobilized for radical change, a time that gave rise to
the second wave of feminism. I examine three phases and several key actors, each representing different groups, with distinctive perspectives: first, the professional movement for reform, composed of physicians and lawyers, which attempted to legislate change; second, the emerging feminist movement, which introduced new meanings of abortion that altered the course of political change; and third, social movement lawyers who challenged the constitutionality of the law and brought together the complaints and claims of physicians, feminists, and low-income women. As a dynamic mass movement in opposition to the existing criminal abortion laws developed, it laid the groundwork for dramatic changes in public policy. The legal challenges framed by Illinois attorneys emphasized the importance of class, race, and gender in abortion. The legal outcome, however, downplayed the significance of race and class in abortion and played up the rights of professionals and female patients.
Professional Reform Measures
Psychiatrists were among the first to question the new structures regulating abortion in the early 1950s. Psychiatrists, the newly liberal and socially activist wing of the medical profession in the postwar period,[1] responded sympathetically to the emotional distress of pregnant women. Their willingness to question the status quo made them early critics of the abortion committee system. Sessions at psychiatry meetings in 1951 and 1952 brought out their frustration. Arthur J. Mandy, a psychiatrist and gynecologist at the Johns Hopkins University, bluntly criticized the therapeutic abortion system as chaotic and discriminatory. Physicians, Mandy declared, found the hospital committee system a "pathetically complicated mess—a hodgepodge of confusion, distortion and duplicity." The lack of clear standards on the indications for therapeutic abortions and the changing policies made the situation "anxiety-provoking" for physicians. The review by hospital committees of honest physicians' recommendations for therapeutic abortion made many of them feel, Mandy reported, like "confirmed criminals."[2]
Hospital restrictions on therapeutic abortion generated resentment among physicians who, as one put it, felt "shackled" by the law. Doctors identified the problem as in the law, not in the structure that had been created by physicians themselves in hospitals under their control.
The monitoring of medical practice delegitimated therapeutic abortion and taught practitioners that they acted on the borderline separating the reputable and the disreputable. Dr. Alan Guttmacher instituted therapeutic abortion committees at two hospitals, yet, he later remarked, those who performed therapeutic abortions had the "haunting feeling that our acts are half-illegal."[3] These doctors soon saw the necessity not of dismantling the hospital committee system, but of changing the law.
Medical and public-health professionals aired the problems of induced abortion in 1955 at a small, unpublicized national conference organized by Planned Parenthood. When Planned Parenthood sponsored this conference on abortion, the organization bravely moved in a new direction. Planned Parenthood, and particularly its medical director, Dr. Mary Steichen Calderone, deserve credit for playing a crucial role in pushing forward a professional movement to reexamine and reform the abortion laws.[4] The organization promised to keep the event quiet.[5] The cloaking of the conference in secrecy is telling: talking about abortion in public scared professionals. The conservatism of the era, both political and sexual, colored the conference. Given that two years earlier one physician had been called to the grand jury as a result of his remarks about abortion at a Planned Parenthood meeting, participants had some reason to worry. Association with abortion could be dangerous. Professionalism did not protect them; instead, it heightened their sense of danger because medical careers depended on good reputations. Conference organizers promised that participants would be quoted only with their permission and could have their "participation deleted" from the published proceedings.[6]
In spite of anxiety about damage to their reputations, the conference participants worked on a joint statement calling for a change in the abortion law, which the majority signed. Professionalism could cut both ways. Professionals worried about protecting their reputations and their social authority, but their status allowed them to speak to controversial matters based on their expertise. "Present laws and mores have not served to control the practice of illegal abortion," their statement began. "To keep on the books, unchallenged, laws that do not receive public sanction and observance," they declared, "is of questionable service to our society." Legal reform was necessary. The participants believed that if current laws were strictly interpreted, most therapeutic abortions would be illegal because they were not induced to "save" a woman's life. The laws should be rewritten to allow doctors
greater legal "latitude" to recommend therapeutic abortions for "psychiatric, humanitarian, and eugenic indications." Liberalizing the abortion laws, the signatories hoped, would expand the practice of legal therapeutic abortion, lessen the inequality among different classes of women in access to legal abortion and birth control, and improve the public health. As a result of the 1955 conference, for the first time in the United States a group of elite physicians and other professionals collectively advocated reform of the criminal abortion laws.[7]
The 1955 abortion conference was a discussion among professionals, and the professionals' view of the world shaped their vision of reform. This is not to say that the efforts initiated by professionals were insignificant, but to point out the boundaries of this conference. Left unspoken at these meetings was the question of whether women could decide for themselves when an abortion was appropriate without having to go through physicians or other intermediaries. The reforms proposed by the group were designed to free physicians from the restraints of laws and committees and to eliminate the sense that providing therapeutic abortions was a shady, disreputable business. Once the indications for therapeutic abortion had been liberalized, sympathetic physicians would be enabled to help more women who needed abortions. Women themselves, however, would still have to obtain medical permission for a legal, therapeutic abortion.
Women's rights were left out of the discussion at the conference and out of the final statement, but it could have been different. The birth control movement had been founded on the principles of female reproductive and sexual freedom, and feminists in England had extended the argument to abortion, but Planned Parenthood now advocated birth control in the name of the family rather than female freedom. Conference participants did not talk about the ALRA in England and its demands for the decriminalization of abortion, though the Bourne case was mentioned and excerpts of the ruling included in an appendix of the published proceedings.[8] This entire group could not have been ignorant of the ALRA perspective, but they did ignore it. Nonprofessional women did not enter the abortion discourse to speak for themselves until later.
The elite of the legal profession heard the complaints of the medical profession and identified with them as professionals unnecessarily hampered by the law. In 1959, the year after the publication of the conference proceedings, the prestigious American Law Institute (ALI), made up of attorneys, judges, and law professors, proposed a model law on
abortion as part of its larger project to standardize American law. As the legal scholar who presented the proposal observed, "The abortion law is out of step with the morals of a substantial, responsible professional group." The ALI's model law clarified the legal exception for therapeutic abortions along the more liberal lines favored by the physicians at the Planned Parenthood conference. It allowed licensed physicians to perform abortions for physical and mental health reasons, fetal defects, or when pregnancy was the result of rape or incest.[9]
The possibility of permitting abortion solely at a woman's request was raised and quickly suppressed. The model law did not allow women and physicians to decide upon abortions without regulation because "it would [not] be sensible to propose a general abortion-at-will statute in this country." Instead, the ALI model law, Leonard Dubin of Philadelphia pointed out, "would go a long way to curing the ill of indefiniteness which has plagued . . . medical practitioners and lawyers trying to advise them." It was hoped that, with the model law, physicians and lawyers would feel less anxiety about therapeutic abortion and, thus, abortions would become more available.[10]
Fearing opposition, the ALI consciously avoided challenging the sexual norms that forbade sex outside of marriage and that treated pregnancy and childbearing as punishment for sexually active unmarried women. The idea of allowing pregnant unmarried women to have abortions provoked a storm. "For us . . . to place the stamp of approval on that," William Marbury explained for the ALI council, "would offend the sensibilities and views of any number of people." This was not about rape, he continued, but about "some girl who goes out and gets herself in trouble and wants to get out of it by an abortion." If the ALI accepted this, it would land in a "great deal of hot water." The speakers expressed little sympathy for the predicament of unmarried women faced with unwanted pregnancies and a great deal of sympathy with a public they assumed to be conservative on the question. The motion to allow abortions in cases of illegitimacy did not receive a second.[11]
The only opposition to the proposed model law on abortion at the 1959 ALI meeting came from a Catholic attorney and a Catholic priest.[12] Like his opponents in the ALI, Illinois attorney Eugene Quay took up abortion as a crucial legal and political question. Quay represented early religious opposition to abortion reform. In 1960 and 1961, he published a lengthy treatise in the Georgetown Law Journal in which he alerted Catholic attorneys to the emerging legal movement to liberalize abortion law and provided arguments to fight the ALI reform. The
Catholic Church had played a key role in opposing the birth control movement and would soon lead the fight against legal abortion.[13]
Over the next decade, legal and medical organizations promoted the ALI model law on abortion in state legislatures as well as in the media. In 1960, the Chicago and Illinois Bar Associations advocated legalization of abortion in cases of rape and incest.[14] By 1967, California, Colorado, and North Carolina had passed the model law. The Illinois legislature voted down reform bills in 1967 and 1968. Twenty-eight other states considered similar legislation, and by 1970, twelve states had passed abortion reform measures based on the ALI model law.[15]
The specter of women dying as a result of illegal abortions propelled activists for legal change. Reformers hoped to protect the lives of more women by granting more therapeutic abortions. Data amassed by New York public-health officers had revealed the growing number of deaths resulting from abortion and shown that most of the women who died were African American or Puerto Rican. Public-health professionals joined the earliest calls for reform growing out of the 1955 Planned Parenthood conference. Dr. Alan Guttmacher, who became the most visible national advocate of reform, explained that his belief in the necessity of legal change was the result of having seen women die because of abortions.[16] The memory and mourning of deaths they could not prevent, but that could have been avoided, caused many doctors and other health-care workers to favor reform. On the popular level as well, awareness of tragic deaths generated support for change. For women, death's shadow always lurked when they sought abortions, and they counted themselves among the lucky if they lived through their abortions. As two early supporters of reform in California, Jerome M. Kummer, a physician at UCLA, and Zad Leavy, an attorney and former prosecutor, vividly observed, "We are confronted with a sea of heartache and confusion and the tragic wastage of more than 5,000 deaths per year. . . . How many women must be sacrificed to needless suffering and death," they asked, before the laws were reformed? If the professions did not take the lead in promoting legal change, an "outraged citizenry," they predicted, soon would.[17]
Feminism and Resistance at the Grassroots
Nonprofessional women forged two early alternatives to the professional movement to reform abortion law in the early 1960s.
The Society for Humane Abortion in California was one; "Jane" in Chicago was the other. Both challenged the state in the most fundamental way and made obvious what had long been true: illegal abortions were readily available to thousands, and the state was powerless to stop them. In creating their own illegal abortion networks, the California and Chicago projects circumvented the medical establishment and hinted at the possibility of a health-care system for women run by feminists in competition with the existing medical system. These initiatives were not at first identified as women's liberation efforts—that phrase had not been coined yet. The second wave of feminism, on the verge of breaking, would follow the analysis and activism of these innovative organizers.
One of the earliest nonelite supporters of the reform movement became one of the first critics of the professionals' reform strategy. In 1961, Patricia Maginnis, a San Francisco medical technician, collected petitions in support of a California bill to reform abortion law. She soon recognized, however, the practical and political limitations of reform. First, Maginnis saw that reform laws would not benefit the majority of women seeking abortions, and second, she concluded that writing restrictive "reforms" into law would make it more difficult to further liberalize access to abortion. As early as 1962, she voiced her objection to the type of review boards that the reform laws would institufionalize. Maginnis formed an organization to support reform legislation, but within a few years she and her organization, the Society for Humane Abortion (SHA), rejected reform.[18]
The society put women, rather than physicians, at the forefront. It exposed the medical review committees, which reform measures would make permanent legal institutions, as insulting and humiliating to women. The professionals who initiated the reform movement assumed that physicians would review women's abortion requests. The society criticized such a system. A woman's decision to have an abortion "should not be frustrated and delayed by the complex machinery of legislated abortion committees which sit in judgment of the woman," the SHA argued. "A decision to obtain an abortion should be treated just as any other surgical procedure, as a private matter between a patient and her physician."[19] In an SHA cartoon, a woman asked a psychiatrist, "How much does a psychosis cost for a legal abortion?" Psychiatrists, who had worked to help women obtain abortions, had come to be seen as barriers and were vilified for their role.[20]
The SHA helped radicalize the abortion discourse when it proclaimed abortion as a right and demanded repeal of abortion laws. "The termination of pregnancy," the organization declared, "is a deci-
sion which the person or family involved should be free to make as their own religious beliefs, values, emotions, and circumstances may dictate." Furthermore, the group argued, abortions should be available, affordable, and provided in a way that was neither "humiliating nor discriminatory." SHA's perspective would be adopted by women's liberation groups and, ultimately, all sections of the feminist movement.[21] For the first time an American women's organization had framed the problem of abortion in terms of women's right to control their reproduction.[22]
In the mid-1960s, Maginnis created a parallel organization designed to help women obtain illegal abortions. Rather than cultivating friendly hospital abortion committees or teaching women what to say in order to get legal, therapeutic abortions, Maginnis challenged the law by running abortion classes and distributing leaflets on the streets of San Francisco with the names of abortionists in Mexico, Japan, and Sweden. By 1969, SHA's underground arm reported sending twelve thousand women outside the U.S. for abortion. Furthermore, it worked to make women who received referrals politically conscious by requiring them to write letters in support of repeal to their state legislators.[23] The group not only sent women to aborfionists, it regulated the illegal abortionists.[24] This project turned the tables on the legal abortion system: instead of women having to prove to physicians that they deserved abortions, physician-abortionists had to prove their trustworthiness to potential patients.
Like the SHA in California, what became known as "Jane" in Chicago had roots in a prefeminist era. It grew out of an information network within the Civil Rights and student movements of the mid-1960s. In 1965, Heather Booth found a doctor in the movement who agreed to perform an abortion for the sister of a male friend. Booth was a student at the University of Chicago and an activist; she had participated in sit-ins at Woolworth lunch counters in New York in support of black antisegregation efforts in the South and had registered black voters during Freedom Summer in Mississippi. Like many before her, including Guttmacher and Maginnis, Booth ended up giving out the name of the abortionist repeatedly and was soon overwhelmed by the demand for help and information. Since she was an organizer, Booth set out to find a group of women to take over this necessary work.[25] In 1967, several women active in movement politics created "The Service," which provided abortions to women without questioning the validity of their requests. The group included Hyde Park homemakers and
University of Chicago students. As they gained control over the quality and prices of illegal abortion in Chicago, they formed an alternative, feminist, health-care system. When the activists negotiated with the abortionists to lower the price, they collectively imitated generations of women who had individually bargained with abortionists. They also set up a "scholarship" fund to help low-income women. Jane members initially delivered women to abortionists, but when they realized that some of the "doctors" were not physicians, they decided to learn how to perform abortions themselves.[26]
The Chicago Women's Liberation Union, a citywide coalition, advertised its abortion service through underground newspapers, women's liberation papers, and school papers. When a woman called the union about an abortion, she was given a local telephone number and told to ask for "Jane." After she left a message, a member returned her call, took her medical history, and arranged for her to talk with a counselor, who explained the abortion procedure and told her to go to an apartment called "the Front." There, service members prepared the woman for the procedure, took her temperature, and gave her antibiotics to prevent infections and a leaflet telling her what to do if she had complications. The Front served as a waiting room for the friends, relatives, and lovers who accompanied women seeking abortions, where they could talk or watch TV while snacking on cookies and coffee. From the Front, where by the early 1970s twenty or thirty people might be waiting, members of The Service drove carloads of women to another apartment where a Jane member gave each woman a local anesthetic and performed the dilation and curettage. A counselor held the woman's hand during the procedure. Between 1969 and 1973, Jane provided eleven or twelve thousand abortions, approximately three thousand per year. The women who went to The Service represented every age, racial, and ethnic group and every class. When New York legalized abortion, wealthier women flew there and The Service's clientele changed. As one woman recalled, "about 70 percent were women of color[,] most of whom were living on a subsistence wage or welfare with very poor health care." [27]
This abortion service was similar to other illegal abortion clinics, but different because of its feminist and radical political orientation. Jane was both a health service and a political education project. Not only did Jane eliminate the profit in illegal abortion as it brought abortion under feminist control, it eliminated the judgments of male physicians and the sexual harassment that sometimes occurred. The activists in
The Service provided for women's health needs within an environment designed for women. They sought to empower women through knowledge of their own bodies: during appointments, Jane members provided handmirrors to enable the women to see their cervixes and gave each woman a copy of Our Bodies, Ourselves . The activists rejected the authority and distance adopted by physicians as well as the white lab coats; instead they wore jeans and talked with their "patients" as sisters and as equals. [28]
Although The Service expanded beyond the movement, it could be incomprehensible to someone outside the movement that sponsored it. What was an advance for activists in the women's health movement—the rejection of male medical authority and the acquisition of knowl-edge—disconcerted some patients. One woman later interviewed about Jane had a negative memory of her abortion experience: it took a long time; it was painful; she doubted their skill. That she went to an apartment rather than a hospital or physician's office, that the furniture was shabby, that the abortion was performed in a bedroom, and that the woman who aborted her wore jeans bothered her. Medical offices and white uniforms reassured women that they were getting good medical care; the lack of these symbols suggested that the whole operation was dirty, illegal, and probably dangerous. This woman's negative reaction may have reflected racial and class differences as well as familial religious opposition to abortion. She was an African American going to a mostly white group; she had not graduated from high school, let alone entered college; and her boyfriend's grandmother had been pressuring her to have the baby. [29] An outsider might see the service as a hippie operation and, though essential, distressing despite the counselors and cookies.
The policing of criminal abortion, which received no attention from the professional reformers, figured importantly in the feminist critique of the abortion system. The SHA and Jane warned women of the conventional police methods used for investigating abortion and criticized the surveillance conducted by hospital staff for the state. Every year in the early 1960s, San Francisco hospitals reported to the police over a hundred women who had abortions. Jane members recalled that hospital emergency room staff called police before aiding women in the process of aborting: "Sometimes they would admit a woman and then withhold drugs from her unless she talked." [30] The voluntary policing by medical practitioners helped produce the rage many feminists felt toward the medical profession. Activists advised women who had abortions that they had a right to refuse to answer the questions of police. [31] (See plate 6.)
Plate 6. "The D.A.'s Peeping Toms." This feminist cartoon suggests that the
investigation and prosecution of abortion provided voyeuristic sexual pleasures
for men. It represented the perspective of women who had illegal abortions and
feared being discovered and observed by police in precisely this way. Patricia T.
Maginnis, The Abortees' Songbook , 1969, Positions Papers part 2 folder, WEF.
Reproduced with permission of Patricia T. Maginnis and of the C. D. McCormick
Library of Special Collections, Northwestern University Library.
By the mid-1960s, women across the country had organized themselves into a number of organizations calling for the equality and liberty of women. [32] Jane and the SHA were formed earlier and became part of this second wave of feminism. Older women active in the 1950s and early 1960s in trade unions and state women's commissions formed NOW, the National Organization for Women, in 1966. NOW empha-
sized ending sex discrimination in hiring, wages, education, and the media. NOW membership was primarily white, but the stereotypical depiction of NOW as exclusively professional and middle-class is incorrect. [33] At about the same time, poor women—African Americans prominent among them—organized themselves in the National Welfare Rights Organization. [34]
Simultaneously, a group of younger women involved in protest movements ranging from black voter-registration drives in the South to the anti-Vietnam War movement began to examine their dissatisfaction within these movements and to reconsider what the Left had long called "the woman question." In 1967 and 1968, small groups soon named "women's liberation" groups arose separately in a number of cities, including Chicago. These groups generally saw themselves as on the Left, preferred militant tactics to lobbying, and although they had national ties, meetings, and marches, worked locally in decentralized groups. They took up the "personal" issues of relationships between men and women, sexuality, and housework and reanalyzed them as collective and, thus, "political" problems. [35] White women dominated these groups, but women of color, sometimes calling themselves "third-world" feminists, also joined them, and black women's liberation groups arose within radical African American protest organizations as well. [36]
Questions about sexuality were particularly salient for young movement women experiencing the "sexual revolution." As young women shared their experiences in consciousness-raising groups, they identified the power relations embedded in sex. Too many men on the Left had made it plain at national meetings and in more intimate encounters that they regarded women as sex objects who were to serve their sexual pleasures as well as their coffee. Some of these insulting (and later infamous) remarks helped inspire the formation of women's liberation groups. The realization among women that they had been sexually exploited, ignored, or even assaulted, instead of pleasured, fueled discussions. In consciousness-raising groups, women learned together that female sexual pleasure was a political issue—the clitoral orgasm had been denied by medical experts and replaced by the intercourse-directed "vaginal orgasm" that conveniently guaranteed male orgasm. They discussed their fears of unwanted pregnancy and their need for effective, safe birth control and abortion. They analyzed heterosexuality itself as a social construction and reconsidered their attractions to women. Lesbians and gay men "came out" and declared their sexuality with pride. All of these issues added up to a recognition of the contra-
dictions within the new sexual "revolution," but not a retreat from the hope of sexual freedom. These feminists did not want to eliminate sexual freedom in order to avoid having to cope with its difficulties, as advocated by the New Right in the 1970s and 1980s. Their demands pointed to feminist desire to enjoy their sexuality and to make their sexual relations with men or women better. [37]
Abortion was part of this radical feminist analysis of sexual freedom because it had real, material importance in women's lives and because it had symbolic significance. Women had used abortion for generations, but feminists articulated a new analysis of legal, available abortion as fundamental to female freedom. The prohibition of abortion, they argued, forced women to bear children; the state's enforcement of motherhood exemplified the oppression of women. Even though abortion initially divided some groups, feminists across the political spectrum came to support the decriminalization of abortion, [38] just as the diverse organizations which made up the nineteenth-century woman's movement had agreed on voluntary motherhood. The new feminist argument for abortion extended the analyses of earlier feminists. Nine-teenth-century feminists rejected involuntary motherhood and agreed on the importance of women's right to refuse the sexual advances of their husbands. Emma Goldman and Sanger went a step further in their analysis of the importance of contraception: without the ability to avoid pregnancy, women could not enjoy (heterosexual) sex or control their own lives. [39] Yet no contraceptive, not even "the pill" introduced in 1960, was 100 percent effective. Furthermore, birth control was hard to get, especially for the unmarried, and some men refused to use it. When women faced unwanted pregnancies, hundreds of thousands of them, married and unmarried, both in the movement and in the mainstream, searched for abortions. Women who never had an abortion needed it as a backup. Abortion was actually used, potentially needed, and representative of women's sexual and reproductive freedom. Each of these meanings underpinned feminist support for legal and accessible abortion.
Feminists not only redefined abortion, they created new tactics. Most important for changing the course of the debate and politics, feminists designated women as the experts on abortion. They rejected the assumption that (almost exclusively) male physicians, religious leaders, philosophers, or politicians had the expertise, authority, or right to decide when an abortion could be performed. At speak-outs, women stood up and declared that they had had illegal abortions. The speak-
out was an important political tactic, for it took abortion out of the realm of private secrets and made it an issue that women could talk about in public. [40] This was not the first time that American women discussed abortion—for they had long talked about it at home, at work, and in the offices of doctors, nurses, and midwives—but it was the first time that they admitted their own abortions in political arenas. In openly discussing abortions, women erased the shame and secrecy surrounding abortion. The speak-outs made clear that abortion was not a personal problem, but a problem for all women arising from the double standard. As women shared their stories, they created new knowledge and educated politicians, the medical profession, the judiciary, and the general public about why women needed abortions and the problems of abortion, both illegal and legal.
The emphasis on planning that the birth control movement adopted in the 1940s would haunt the movement to decriminalize abortion. The movement's new name, "Planned Parenthood," implied that planned children were better and unplanned children undesirable. Exercising such control, however, was a middle-class privilege and virtue. [41] Many, particularly in the working class, did not "plan" their families and did not necessarily regard an unplanned pregnancy or an unplanned child as unwanted. The emphasis on family planning had the unfortunate result of suggesting that everyone should carry out their sex lives and create families in a rational manner and that "accidental" childbearing was reprehensible. This induced guilt (and anger) among middle-class women, who do not always act with foresight but believe that they should, and among low-income women and men, who sense disapproval of their families. Outsiders blamed the children of the poor for their poverty, rather than placing the blame on the economic system or the racism and sexism that denied them well-paid jobs.
Population controllers entered the abortion discourse with a different analysis: they favored legal abortion to combat "overpopulation," a problem they located in low-income and "nonwhite" neighborhoods and third-world countries. As Linda Gordon has pointed out, population control and feminism had different roots. The former was rooted in imperialism and institutionalized in U.S. foreign policy in the 1950s and 1960s to control third-world populations and avert insurrections. The latter was rooted in a desire to combat the oppression of women. Unfortunately, however, the main birth control organization, Planned Parenthood Federation of America, suppressed its feminist origins and joined in the promotion of worldwide population control measures, thus powerfully linking birth control and population control. Popula-
tion control programs did not emphasize women's rights to make decisions about childbearing, but imposed government-sponsored programs to cut the fertility of the poor. Many new environmentalists picked up the theory of the impending population explosion and embraced population control in the name of protecting the earth from destruction. [42] Demonstrating the popularity of these ideas, in 1970 Senator Robert Packwood (R. Ore.) introduced a bill into Congress to liberalize the abortion laws as a solution to the perceived "population explosion." [43]
At the same time, Planned Parenthood worked to provide birth control services to low-income, urban women of color. Though many low-income black women desperately wanted birth control, the provision of these services often made them feel pressured to accept contraceptives. In Pittsburgh, for example, Planned Parenthood staff advertised their clinic by going door-to-door in poor neighborhoods with the result, said a physician for the NAACP, that many African Americans "feel that they'd better obey 'official suggestions' to visit a birth control clinic or risk losing their monthly welfare check." [44]
Some state officials pushed policies to sterilize poor women. In Illinois, one legislator proposed that welfare recipients be forced "off public aid or undergo sterilization operations if they have more than two children." This legislator did not question the justice of using political power to regulate both the reproduction and the sexual behavior of low-income women. His bill intended to reduce the numbers of the low-income population (and, specifically, if not explicitly, reduce the black population with which welfare had become identified). The bill was defeated, but a message about the official desire to sterilize African Americans had been sent nonetheless. [45]
Urban black nationalists recognized the underlying racism of population controllers and the fears of poor African Americans and renamed birth control, and then abortion, "black genocide." The fear of birth control as a method of racist oppression designed to eliminate this minority population and its political power were mainly located among poor, urban African Americans. [46] Educated African Americans and their organizations had promoted birth control since the early twentieth century, but they too criticized the racism underlying many birth control programs. [47]
Some black nationalists called for the production of more babies, not fewer. One spokesman of an "ultra-militant" New York group (as Ebony described him) remarked, "See that sister there? She's having another baby for me. I need an army, and this is how we're going to get
it." [48] In the war for black political power, African American women were assigned a role based on their biological capacity and traditional female gender expectations: their job was to reproduce and nurture future soldiers. Black health-care workers pointed out that men feared birth control, not only because of their stated concern about genocide, but because they feared that contraceptives could free female sexuality. [49] Black nationalist men had sexism in common with white men on the Left and the Right. [50]
Feminists of color struggled over these issues with the men of their own racial groups and with white feminists; on the one hand, they fought sexism, on the other, racism. African American and Latina feminists brought the issues of genocide and sterilization to the forefront of feminist attention and rejected the notion that the revolutionary. role for black women was to have more babies. "Breeding revolutionaries," Florynce Kennedy commented, "is not too far removed from a cultural past where Black women were encouraged to be breeding machines for their slave masters." The nationalist indictment of contraceptives and abortion as "genocidal" was, Congresswoman Shirley Chisolm believed, "male rhetoric, for male ears." She pointed to the high level of injury and death resulting from illegal abortion among black and Puerto Rican women and advocated legal and accessible birth control and abortion for all. [51]
Third-world feminists made opposition to forced sterilization part of the campaign to repeal the abortion laws. African American women in the Women's National Abortion Action Coalition consistently raised the issue of sterilization abuse. Radical segments of the feminist movement, including the Chicago Women's Liberation Union, heard the charges of black genocide and adopted positions against sterilization abuse. The reproductive rights wing of the abortion movement supported the right to bear children as well as the right to avoid childbearing and demanded all of the services that would make such freedom in childbearing possible. [52] Antiracist and oppositional voices pushed the abortion rights movement to recognize that abortion was not the only issue, but never controlled the movement.
A multitude of groups formed on every level—at the national, regional, state, city, professional, church, and campus levels—to decriminalize abortion. Permanent organizations formed that still exist, and many more ephemeral organizations popped up everywhere. The National Association for the Repeal of Abortion Laws (NARAL) was formed in 1969, and Dr. Ed Keemer became its Midwest vice president. [53] Clergymen from numerous denominations created a national
clergy abortion referral service. [54] Women ran an "underground railroad," driving women from southern states to Chicago to get abortions. [55] Students at a Catholic women's college in Chicago formed a chapter of the Women's National Abortion Action Coalition (WONAAC); though the administration opposed them, "several nuns privately expressed their support." [56] In 1970, women's, medical, trade union, socialist, and population control organizations joined under one banner for "Total Repeal of Illinois Abortion Laws." [57]
By 1968, the various branches oft he abortion rights movement had adopted the feminist position that the abortion laws had to be repealed. This marked a significant shift in the thinking of the professional movement. Public debate, the new women's movement, and political events pushed doctors, with much of the rest of American society, in directions they previously would not have imagined possible. California passed the ALI model law in 1967, but a year later it was clear that reform was a failure and repeal necessary. The law had made the therapeutic abortion system inflexible. Instead of freeing doctors to perform more therapeutic abortions, reform laws further enchained doctors to the committee system. Where before the legal vagueness enabled different hospital committees to allow therapeutic abortions for a variety of reasons, now the law delineated the acceptable indications and left no room for interpretation. Furthermore, California state officials had initiated a campaign to punish physicians for participating in abortion. Secret investigations resulted in charges against nine physicians. A raid on an abortion clinic revealed that a California doctor referred patients there; Dr. Leon Belous, a public supporter of liberalizing the abortion laws, was prosecuted and convicted in 1968 for referring a woman to that abortion clinic. [58]
Dr. Alan Guttmacher may serve as an example of the transformation of liberal professional thinking. Guttmacher's biography mirrored the political history of abortion. He had been uncomfortable with medical teaching on abortion since the late 1920s, but senior obstetricians silenced his criticism in the 1930s. In the early 1950s, he instituted therapeutic abortion committees, hoping to eliminate the arbitrariness of abortion decisions, only to become frustrated later with the mechanisms he helped create. Guttmacher participated in the professional reform movement at its start and was an outspoken public advocate for legal change since the late 1950s, but until 1968, he opposed repeal as too radical. Both his willingness to challenge abortion policy and his relative slowness to accept the idea of repealing the abortion laws were shaped by his profession. He urged reform because, as an obstetrician,
he had seen the horrendous results of the criminal abortion laws, yet his professional assumptions made him prefer limited reform. He was a radical within a conservative specialty. The movement and the results of reform changed his mind. After being appointed by New York Governor Nelson Rockefeller to a state commission on abortion, Guttmacher stopped arguing for halfway reform measures. "I changed my mind and I am in your camp," he told one feminist correspondent who questioned his position; "abortion on demand is the only civilized way to handle the problem." [59]
The medical profession organized to criminalize abortion in the mid-nineteenth century and to oppose those very laws a century later. The nineteenth-century regular medical profession had derived authority by proclaiming its moral superiority and by positioning itself as paternalistic arbiters over female reproductive behavior. A hundred years later, the profession enjoyed enormous social authority. [60] Yet as the abortion laws restricted and monitored medical practice, they undermined medical autonomy. By the late 1960s, esteemed members of the profession no longer needed to attack abortion to prove their purity and could challenge laws promoted by their fore bears without having their reputations questioned.
The legalization of abortion gained great medical and popular support in these years. When a Chicago television station made a medical debate on Illinois abortion law reform into a referendum in 1967, the "votes" showed high support for reform. [61] An early survey of New York obstetricians and gynecologists found that an overwhelming majority, 85 percent, supported the ALI model law, and in 1968 the American College of Obstetricians and Gynecologists approved the liberalization of abortion laws along reform lines. [62] Psychiatrists, black medical societies, and the American Public Health Association went further: they supported repeal. [63] The American Public Health Association advocated public funding of abortion to ensure its availability to all women. [64] 1969 polls found that the majority of physicians supported repeal of the criminal abortion laws and the majority of Americans, including most Catholics, believed abortion should be a private decision. [65]
Constitutional Challenges
Young attorneys dedicated to civil liberties and women's rights formulated new legal strategies in their own effort to repeal the
criminal abortion laws. Legal teams in many states devised ways to challenge the abortion laws in the courts alongside legislative and protest efforts. Two young women lawyers, Sybille Fritzsche and Susan Grossman, challenged the constitutionality of the Illinois criminal abortion law. The attorneys used a tool adopted by legal activists to make claims for large groups, the class action suit. They formulated an innovative legal strategy that brought together medical professional interests and feminist interests into one class action suit. In linking medical and feminist perspectives, the attorneys wove the disparate and often hostile strands of the movement together and, simultaneously, represented the interests of the two groups who had negotiated the problem of abortion for a century. They constructed a case to speak to the highest levels of the judiciary, which told of the discriminatory nature of the abortion system, the restrictiveness of therapeutic abortion policy, and the dangers women faced as a consequence of the criminal abortion laws. The Illinois case is an example of the crucial strategy, crafted simultaneously by a number of lawyers, that ultimately shaped the U.S. Supreme Court decisions on abortion. [66] The Illinois lawyers shared their briefs with attorneys challenging the abortion laws in other states. [67] The legal arguments formulated by left-leaning feminist lawyers proved to be powerful.
Fritzsche and Grossman were part of "a new generation of lawyers" dedicated to using the law to bring about fundamental social change. The Illinois case, Doe v. Scott , began in 1969 when Susan Grossman, a new attorney at the Chicago Legal Aid Bureau, met Sybille Fritzsche at the Chicago office of the American Civil Liberties Union (ACLU). Grossman had gone to Harvard Law School to bring about "social change." At a 1969 summer training session for attorneys beginning to work in legal services to the poor, she was exposed "to the women's liberation movement for the first time close up." Although Grossman considered herself a feminist, these more radical women "intrigued" her and made her think about the problems of poor women. When she learned that September that the California Supreme Court had found the state's nineteenth-century abortion statute unconstitutional in People v. Belous (1969), she was spurred to action. [68] One year out of law school, Fritzsche had joined the Chicago ACLU staff, where she worked on free speech and civil rights cases. Although she was "appalled" at the "lack of ambition" among women when she came to the U.S. from Germany in the late 1950s and was one of only three women in a class of 150 at the University of Chicago Law School, she did not identify with the women's liberation movement. Fritzsche's politics
were rooted in the European Left. [69]Belous prompted lawyers in other states to prepare suits, and several physicians, including Keemer, sought arrest in order to test the constitutionality of abortion laws. [70]
The Illinois challenge grew out of the lawyers' commitment to the poor and to improving the lives of the most oppressed in society. The link between poor people's movements and feminism, evident in this case, has been forgotten. Part of the momentum of the abortion movement lay in the connection that many activists saw between the interests of feminists and the poor. Susan Grossman was a Legal Aid attorney when she proposed challenging the abortion law. "This was very radical in 1969," she remarked twenty-five years later; the idea made her supervisor "nervous." The United Charities funded Legal Aid and their supporters included conservatives. Grossman was determined, however, and explained to the board of Chicago Legal Aid why Legal Aid should be involved in this suit. "My feeling from the very beginning," she later explained, "was that the women who were most hurt by the statute were poor women. . .. I felt I was representing the poor women of Illinois." The board approved her participation in the case, but did not allow her to be identified in court documents as a Legal Aid attorney. [71] As hospital and mortality data showed, poor women were hurt the most by the illegality of abortion. Though feminism and the pro-choice movement have been represented as white and middle-class movements, sections of those movements recognized and fought for the interests of low-income women and women of color. [72]
The two colleagues placed class inequality at the forefront of their suit. The case began with two women who wanted legal abortions but were unable to obtain them because physicians feared prosecution under the Illinois law. It highlighted the inequity in access to abortion: one woman was wealthy and eventually went to Great Britain for an abortion; the other was poor and was forced to bear the unwanted baby. The Illinois abortion statute, Fritzsche and Grossman argued, "systematically discriminates against poor women, depriving them of equal access to the treatment available to women of means solely because they are poor." Because women of means could consult with physicians, they explained, they were more likely to gain sympathy and obtain "hospital abortions." If necessary, wealthy women could afford to travel out of state to obtain abortions. The existing laws resulted in "different treatment for different women" and thus violated the equal protection provisions in the constitution. [73]
The lawyers argued for the feminist principle that women had a
right to make decisions about whether to carry or terminate their pregnancies. In their brief they forthrightly stated a truth about the meaning of the criminalization of abortion: the law "compel[s] her, against her will, to continue a pregnancy." Forcing a woman to bear an unwanted child forced her to risk her own health and the "quality of her own and her family's life." The state's criminal abortion law, they argued, "represents an impermissible intrusion into her right to her personal integrity and is a deprivation of her personal liberty." Citing the women's suffrage amendment and the Civil Rights Act, they asserted that a woman is "not to be subject to the determination of an individual male such as father or husband," yet the existing law subjected her to male lawmaking and prohibited women from making decisions for themselves. [74] On abortion, Susan Grossman declared during oral arguments, "only the woman must decide." [75]
Finally, the lawyers referred to the right to privacy of women and married couples. In Griswold v. Connecticut (1965) the U.S. Supreme Court had concluded that "a zone of privacy" existed in the marital relationship, into which the state could not intrude. The Court found that Connecticut's laws that made birth control illegal violated the constitutional right to privacy. Attorneys seeking to overturn the nation's criminal abortion laws argued that just as the decision to avoid conception through the use of birth control was protected under the right to privacy, so too was the decision to keep or abort a pregnancy. "The mere fact of fertilization," the Illinois team argued, "should not in itself abolish or limit the constitutional right of a woman to decide whether to have a child." [76]Griswold was a key case, but the Illinois brief pointed to a tradition of decisions over the previous fifty years that recognized a constitutional right to privacy in family matters ranging from the right to bear children, to send children to private schools, and to interracial marriage. [77]
The Illinois attorneys did not make privacy their primary argument, despite some pressure to do so. Members of the ACLU board wanted Fritzsche to argue the case exclusively on privacy grounds, the preferred argument of feminists. Jody Parsons, one of Jane's founders, advocated this position. (Her presence on the ACLU board illustrates the efforts of different groups to work together.) Fritzsche and Grossman, however, planned to present an array of arguments for overturning the criminal abortion laws as unconstitutional. Having clerked for a federal judge, Grossman understood their conservatism and wanted to provide alternatives that would allow them to select more conservative arguments to reach the same result. As she later explained, "We decided to
focus on vagueness . . . and to downpedal the privacy argument." [78]
The innovative aspect of the case created by Grossman and Fritzsche was its attention to the complaints and interests of the medical profession along with those of women of all classes. They argued that the vagueness of the criminal abortion law made it impossible for physicians to practice medicine and serve their patients. They further argued that the laws violated the physician's right to privacy and freedom of speech in the relationship between physician and patient. [79] The legal team brought together Chicago's most prominent academic specialists in obstetrics and gynecology to challenge the Illinois abortion law. The four physician plaintiffs were nationally recognized leaders in their specialty, heads of the obstetrics and gynecology departments at four prestigious Chicago hospitals, and professors and heads of the departments of obstetrics and gynecology at four of Chicago's major medical schools: Northwestern University, Chicago Medical School, University of Illinois Medical Center, and the University of Chicago School of Medicine. Fritzsche and Grossman insisted that, in contrast to the anonymity of the female plaintiffs, the doctors use their names. Doctors Frederick P. Zuspan, David N. Danforth, Charles Fields, and Ralph M. Wynn all signed on to the case. [80] The legal challenge received strong medical support. Over 120 medical school deans and faculty, representing physicians in thirty-four states and Washington, D.C., joined in filing a motion in support of the suit. [81] A group of pediatricians submitted an amicus brief. [82]
Fritzsche and Grossman identified physicians as a class that had an interest in decriminalizing abortion. In recruiting the physicians, the civil liberties lawyers drew upon a growing consensus within the medical profession, but they were not approached by doctors nor were they particularly aware of medical efforts to reform the abortion laws. Fritzsche and Grossman's ideas grew out of an incredible ferment and demand for change that makes the linking of the interests of the medical profession and women in legal reform seem inevitable, but abortion activism was not coordinated. The legal team had thought "very carefully" about who they wanted as representatives of the class and sought out the most prestigious doctors to say, "I should have the freedom to order and do one if I feel it is medically necessary." [83]
The physician plaintiffs expressed the dilemmas and the distress created for doctors by the state abortion laws. Their affidavits and the attorneys' brief spoke to the two problems that had fueled the movement to legalize abortion: the restrictions on physicians' practice of thera-
peutic abortions, and the deaths and injuries of women that resulted from illegal abortions. Dr. Danforth described cases for which the law did not allow abortions. "Any physician confronted with cases such as these," Danforth confessed, "reacts with despair and frustration when he cannot give the woman involved the treatment which in his judgment is medically indicated." [84] Dr. Fields pointed to forty years of experience to explain his support for legalizing abortion. As a resident at Cook County Hospital, he had seen "a large number of septic abortions." His experiences and his patients had "convinced" him "that the woman is usually the best judge of whether a pregnancy should or should not be terminated." [85]
The concerns of these leading physicians spoke to the judges, who were the elite within their own profession. The attached vitas and publication lists surely impressed the judges and impressed upon them the unfairness of forcing reputable professional men to worry about whether their medical decisions conformed with the law. The suit constructed by Fritzsche and Grossman paralleled the drafting of the ALI abortion reform law over ten years earlier. The legal elite then had heard and responded to the complaints of the medical elite and attempted to remove the law from what should have been medical decisions. The plaintiffs in this case implicitly called upon interprofessional respect to raise doubts about the existing law in the minds of the judges.
In January 1971, the federal court held the Illinois abortion law unconstitutional and highlighted both the difficulties faced by reputable doctors and the rights of women. "The treating physician who believes an abortion is medically or psychiatrically indicated," the chief circuit judge explained in the majority opinion, "finds himself threatened with becoming a felon as well as with the possibility of losing his right to practice his profession if he errs in the legal interpretation of a penal statute." The statutory language was unclear and left not only doctors but the courts wondering what was allowed and what not. For these reasons the "void-for-vagueness doctrine" applied. [86] Yet the main reason given for overturning the abortion law was the violation of "fundamental" women's rights. The court found the Illinois statute "an intrusion on constitutionally protected areas. . .. These protected areas are women's rights to life, to control over their own bodies, and to freedom and privacy in matters relating to sex and procreation." Finally, this decision introduced the idea of the trimester system, declaring that "during the early stages of pregnancy—at least during the first trimester—the state may not prohibit, restrict, or otherwise limit
women's access to abortion." The court avoided addressing the problem of class discrimination in access to safe abortions, however. [87]
The lawyers had won—abortion was legal in Illinois. The majority opinion held that the state could not ban early abortions performed by licensed physicians in licensed medical centers. Immediately after the decision, Cook County Hospital received hundreds of phone calls from poor women seeking abortions. A physician on the ACLU board, Dr. Marvin Rosner, performed an abortion to establish the right to do so. Cook County State's Attorney Edward V. Hanrahan and Dr. Bart Heffernan appealed the decision to the U.S. Supreme Court and won an injunction that stayed the lower court's ruling until the Supreme Court ruled on the question. [88]
The new era in Illinois lasted just ten days. Abortion was again illegal. Despite the initial victory, the situation was as bad as it had ever been, and an official backlash against legalization began. As the appeals on the Illinois case and several others waited to be heard by the U.S. Supreme Court, women needing abortions found it extremely difficult to obtain safe abortions. Therapeutic abortions were nearly impossible to obtain. At Michael Reese Hospital in Chicago a social worker acted as a gatekeeper and made the first diagnosis: could this woman's condition be considered grounds for a therapeutic abortion? In eighteen months she interviewed 125 women and rejected two-thirds. In 1970, eight Chicago hospitals had provided over five hundred therapeutic abortions. This was a minuscule number compared to the three thousand abortions performed annually by Jane alone and the nearly five thousand women with abortion complications cared for at Cook County Hospital. Observers estimated that there were fifty thousand illegal abortions per year in the county and over a million nationwide. [89]
Chicago hospitals had inconsistent policies regarding therapeutic abortion, as a 1971 study showed. Abortion committees at nine hospitals reviewed ten hypothetical requests for abortions and reached different conclusions in most cases. In hypothetical case number three, the patient had had rubella, a history that raised the issue of abortions performed because of fetal defects. Six of the Chicago hospitals would allow the abortion in the rubella case and two would not. In case number four, a minister's daughter had been raped. This case evoked sympathy for rape and, by identifying the woman as a minister's daughter, assured the committees of the victim's sexual "innocence." Six hospitals would permit an abortion. In case number eleven, Mrs. A. was described as a woman with five children, tuberculosis, and financial diffi-
culties. She typified the poor woman of the Depression, for whom a therapeutic abortion could be justified on a combination of social, economic, and medical grounds. Only one hospital would deny Mrs. A. a therapeutic abortion for socioeconomic reasons. The study confirmed that suicide attempts, backed up with recommendations by psychiatrists, were the best way to obtain therapeutic abortions in Chicago. All nine hospitals granted a therapeutic abortion for a woman who had attempted suicide "last night." "Different women," the researchers concluded, "are receiving different treatment at different hospitals for precisely the same types of problems," and they questioned the constitutionality of that pattern. The study confirmed the vagueness of the law charged by cocounsel Grossman and Fritzsche. [90]
A few women got legal abortions in Chicago hospitals; others traveled from Chicago to New York for legal abortions. In 1970, Hawaii, Alaska, and New York had decriminalized abortion instead of passing reform bills. [91] When New York legalized abortion, it was a boon for women all over the country. As one woman recalled, a New York abortion clinic treated patients who "had traveled from states such as Mississippi, Arkansas, Michigan and even farther. . .. They spent a lot of time, money and energy to travel to a different state, far away from their homes so that they could be assured of a safe abortion." [92] Over 65 percent of the women receiving abortions in New York were from out of state; in 1971 and 1972, thirteen thousand women came from Illinois. [93]
Some of these thousands had been sent to New York by abortion referral services in Chicago. The existence of such services, sponsored by religious and birth control organizations, indicates the depth of political resistance to the criminal abortion laws. In 1966, the Rev. Dr. E. Spencer Parsons, dean of the University of Chicago's Chapel, had started Chicago's Clergy Consultation Service on Problem Pregnancies. The Baptist minister's involvement in abortion grew out of his earlier work to legalize birth control in Massachusetts. [94] The Chicago service was part of a national ecumenical effort in opposition to the criminal abortion laws. Each woman met with a minister or rabbi who listened to her predicament and gave her an abortion referral; some found the counseling helpful and no doubt others thought it paternalistic. In 1970, the clergy service helped seventy-five hundred women get abortions outside of Illinois. After Planned Parenthood's referral service discovered it could help fewer than half of the callers, the two services joined as one. [95] In one month in 1971, the combined service referred almost 750 women to New York for legal abortions. Nearly equal
numbers of the women were married and unmarried. Of the women referred, 70 percent were white, 23 percent black, 43 percent Catholic, and 20 percent low-income. Within months, however, the service could not meet demand because low-income women could not afford the cost of travel and clinics refused to lower their fees. [96]
The story of Doris B., a twenty-six-year-old black woman in Chicago, underlines the inherent limitations of legalization in one faraway state and of local efforts to provide abortions for low-income women who sought them. Even though the referral service and Jane tried to help all Chicago women who needed abortions, some low-income women never found either organization. The "tragic event" was, her friend later wrote, "well-etched in my memory." Doris B. had four children and depended on welfare to care for them. "It was a constant struggle to provide for these children," her friend recalled, "and she felt that another child was more than she could endure." Doris B. considered going to New York, but poverty "made that impossible. Doris chose the 'cheaper' illegal alternative in Chicago." She died from septicemia following her illegal abortion in 1972, and her children became orphans. [97] The uneven development of legalization contributed to Doris B.'s death. Legalization of abortion in a few states was an advance, but it still left most women in most states facing the dangers of illegal abortion. An underground feminist abortion service willing to help anyone, including those who could pay nothing, could not reach and serve everyone.
Meanwhile, the Cook County state's attorney was on a crusade of his own to signal physicians and others that he personally would not tolerate the practice of abortion in his city. The suppression of abortion had become newly politicized. "Physicians were very afraid. It was known," Fritzsche vividly recalled, "that Hanrahan was going to enforce this law and people were really afraid." [98] Chicago authorities investigated a rabbi working with the clergy consultation service as a suspect of "an abortion ring" and searched his university offices. [99] At the urging of then Illinois house majority leader Henry Hyde, Hanrahan called the clergy consultation service's founder before the grand jury, demanding that he name the abortionists he knew. Rev. Spencer Parsons refused to testify, claiming the right of clergy to confidentiality. [100] Official harassment did not stop the abortion referral service.
In January 1972, one year after the Doe v. Scott victory, the Illinois Supreme Court dealt the abortion rights movement a blow. As a counterattack to the abortion rights movement, Hanrahan had appealed a
Chicago therapeutic abortion case to the state supreme court. A juvenile court had allowed a suicidal teenage ward of the state to have an abortion on psychiatric grounds. For the first time, the court ruled on the medical indications for therapeutic abortion. In People ex rel. Hanrahan v. White, the court concluded that the law did not allow therapeutic abortion for suicidal intentions. [101] The Hanrahan case was a defeat for the abortion rights movement and threatened women's access to therapeutic abortions in Illinois. The state's attorney's vigorous pursuit of this unique case warned physicians and hospitals that prosecutors might challenge their therapeutic abortion practices.
Police stepped up their arrests of abortion activists at about the same time. Several months after the Hanrahan ruling, Chicago police raided Jane. Police took nearly fifty people to the police station for questioning, brought three women in the middle of being aborted to a hospital, and arrested seven Jane members. Local police had ignored Jane, but officers in another district raided them in response to a complaint. Jane activists had counted on their friendly relations with the police to protect them; given that police regularly harassed protesters, their trust seems politically naive. [102] Florida officials arrested and prosecuted Shirley Wheeler for having an abortion, a shocking move, and in 1971 she was convicted of manslaughter. [103] Ten days before a Michigan referendum on the state's abortion laws, Dr. Keemer, a visible proponent of repeal and a NARAL officer, was raided. He, his assistants, and a dozen patients were arrested and jailed for abortion. [104]
The raid on Jane advertised the organization to the public and simultaneously drove it further underground. Supporters on the Left began raising money to bail out and defend the Jane women and wore buttons declaring "Free the Abortion Seven." Like other illegal abortionists raided in the postwar period, Jane adopted clandestine measures to protect itself. The process, one member recalled, became "much more nerve-wracking" for the women seeking abortions. They eliminated the Front and instead, "We'd pick people up in public places, on street corners, and take them to the place where they were going to have the abortion and counsel them just before it." The group refrained from returning to blindfolds, a protection abolished when members began doing abortions. [105]
Unlike women and men caught in the abortion raids of the 1940s and 1950s, the Jane members had the support of a political movement. By then that movement had been transformed from a small, professional reform effort to a mass movement with organizations big and
small across the country. Advocates of the legalization of abortion ranged from the elite to the newest members of the medical and legal professions, to a multiplicity of religious denominations, to the most militant of feminists and leftists. Activists had strong popular support for bringing the laws governing abortion into line with actual practice and with a popular morality that accepted women's rights to control their reproduction. That broad-based movement to decriminalize abortion brought about the 1973 U.S. Supreme Court decisions in Roe v. Wade and Doe v. Bolton , and as a result, the charges against Chicago's "Abortion Seven" were dropped and Keemer's earlier conviction erased. [106]
On January 22, 1973, the U.S. Supreme Court found the nation's century-old criminal abortion laws and the new reform laws unconstitutional because they violated the rights of women and the rights of physicians. The Supreme Court decisions in Roe v. Wade and Doe v. Bolton[107] put women and doctors together at the center of abortion, the two groups who had negotiated the terrain of legal and illegal abortion for generations and who had come to find the laws intolerable. The medical profession had played a key role in making reproductive policy since the nineteenth century; for the first time, the state recognized women's role and rights in reproductive policy. Roe v. Wade declared that the right of privacy included "a woman's decision whether or not to terminate her pregnancy." The majority opinion described abortion as a medical decision and recognized the right of physicians to practice medicine without undue interference. In the first trimester of pregnancy, "the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated." [108] The history of the relationship between medicine and women shaped the political movement, public policy, and Supreme Court decisions.
In a companion opinion, Doe v. Bolton , the Supreme Court declared the hospital therapeutic abortion committee system, devised in the 1940s and 1950s and institutionalized in reform laws, unconstitutional. Though often overlooked since, this decision was as important as Roe . The Court held in Doe v. Bolton that policies designed to restrict access to abortion, such as those in the Georgia reform statute, violated the rights of women to health care and of physicians to practice. In March 1973, the Illinois Supreme Court found the Illinois criminal abortion statute, originally passed in 1867, to be unconstitutional. [109]
The U.S. Supreme Court rejected, however, the crucial argument
that the nation's abortion laws were discriminatory.[110] The constitutional challenges framed by activist attorneys had emphasized the importance of class, race, and gender in abortion.[111] The class inequities under the framework of legalized abortion arose not from the women's movement or the cases presented to the Court, but from the Court's unwillingness to address economic inequality.
The Court's decisions were less than what feminists had wanted, because they left abortion in the hands of physicians, because women's rights were "balanced" against the rights of the state and limited by a technologically determined "viability" of the fetus, and because the inequities of class were ignored. However, the acknowledgment of women's rights to make decisions about their own bodies and reproduction independently of men was a significant advance. Winning legal abortion was a victory—as important as winning suffrage or equal pay for equal work. Roe v. Wade and Doe v. Bolton ended an era of illegal abortion. These decisions, with all of their limitations, represented a transformation in the status of women in American society.