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.