Abortion after Roe

Acknowledgments

It is with great excitement that I finally turn to the part of the book where I can thank all of those who have helped me get to this point. It took more than a decade to research and write this book, and my debts are long-standing and wide-ranging.

Anyone researching and writing about abortion knows that it is almost impossible to secure funding for a project like this. Frequently, funding applications are either ignored or returned with comments indicating that reviewers find the topic too sensitive. Given this situation, I am extremely grateful for the funding that I did receive. In the early years of the project, the American Philosophical Society and the Iowa Arts and Humanities Initiative helped support several summers of research. The Sexuality Research Fellowship Program of the Social Science Research Council, with funds provided by the Ford Foundation, offered me a year off for research. The University of Iowa gave me a three-semester Faculty Scholar Award with leave time to finish the research and begin to write this book. After my move to Rutgers University in 2011, the Institute for Health, Health Care Policy, and Aging Research generously provided a teaching reduction for two semesters to facilitate the completion of this project. Without all of these, this book might never have seen the light of day.

My intellectual debts for this project go to Rosalind Petchesky and Carole Joffe, whose work on abortion stood as early models for me. Carole encouraged me to join the National Abortion Federation. The NAF community, initially puzzled by the presence of a historian, generously shared information. Members told me their stories, formally and informally. Stan Henshaw shared data from the Alan Guttmacher Institute and helped me figure out how to read it. Terry Beresford, Renee Chelian, Takey Crist, Chuck deProsse, Ron Fitzsimmons, Warren Hern, the late Susan Hill, Jerry Hulka, Claire Keyes, Frances Kissling, Uta Landy, Lynn Randall, Ann Rose, Charlotte Taft, Francine Thompson, Robert Thompson, Rosa Tilley, the late Morris Turner, Susan Wicklund, and Elinor Yeo agreed to be interviewed and were generous with their time and insights. Many also shared papers, pictures, and other mementos to help with my research. In addition, many others sat with me at panels, answered countless questions, and made me feel part of the organization. Thanks go especially to Curtis and Glenna Boyd, Marc Heller, Lisa Harris, Peg Johnston, Willie Parker, the late Robin Rothrock, Shelley Sella, and Tracy Weitz.

The wonderful group of medical historians who annually convene at the meetings of the American Association for the History of Medicine cheered me on and helped me figure out what I wanted to say about the topic. Special thanks go to Susan Reverby and Judy Houck, who read portions of the manuscript, providing support and encouragement. Leslie Reagan and Naomi Rogers read the entire manuscript and offered many useful suggestions. All of them helped to make this a better book.

A number of archivists helped with the research and facilitated the deposition of the records of abortion providers. At Duke University, Christina Favretto and Laura Micham from the Sally Bingham Center for Women’s History and Culture were glad to give a home to the manuscript collections of abortion providers and supported this project from the very beginning. At the University of Iowa Women’s Archive, Kären Mason and Janet Weaver guided me through the papers of the Emma Goldman Clinic, retrieved many boxes, and answered endless questions. Karen Kubby and Francine Thompson helped with research on the Emma Goldman Clinic collective and unearthed additional materials.

In Jacksonville, North Carolina, Marion Goodman and Mark Goodman offered me a home away from home during many weeks when I was processing and researching the papers of Takey Crist. Anne Joyner and Allan Parnell did the same in Mebane, North Carolina. To make me feel even more at home, they also offered me their pastures to mow—a very therapeutic experience after any ten-day stint processing manuscript collections—a hot tub, many walks, and food so delicious that I gave up being a vegetarian. Jackie Hall and Bob Korstadt were always ready for a glass of wine when I turned up on my research trips to North Carolina, and they offered a patient ear, helpful suggestions, and much support. During several Montana summers, Mary Murphy became a wonderful friend who offered many hours of conversation and whose love and support sustained me.

Several of my graduate students at the University of Iowa spent countless hours transcribing oral history interviews and helping with other research tasks. Thanks go to Jo Butterfield, Anna Flaming, Karissa Haugeberg, and Angela Keysor. Colleagues at Iowa offered support and invaluable feedback on the early stages of this project. Jennifer Glass, Linda Kerber, and Susan Lawrence heard, read, and commented on various drafts. Jennifer Sessions, Michaela Hoenicke Moore, Michael Moore, Glenn Penny, Jackie Blank, and Carl Claus offered friendship and many meals. David Kearns provided crucial support in helping me balance the personal and professional. At Rutgers University, James Reed read early versions of several chapters and told me to keep on writing. Cynthia Daniels read the manuscript and offered critical comments. Jesse Bayker and Amy Zanoni offered research help. Jennifer Jones, Jennifer Mittlestadt, and Marisa Fuentes provided me with writing accountability, support, and friendship. Carol Boyer, Barbara Cooper, Ann Fabian, Janet Golden, Jochen Hellbeck, Seth Koven, and Donna Murch also offered their friendship and support and quickly made Rutgers and the east coast feel like home. Doug Greenberg, Jim Masschaele, and Mark Wasserman offered encouragement and support. Olin and Sylvia Gentry and Courtney Doucette took me away from my work and offered friendship and entertainment during my Philadelphia years.

This book had many informal editors, all of whom were awesome. Kennie Lyman read the entire manuscript and made invaluable suggestions for organization and reorganization. Sian Hunter originally solicited this manuscript for UNC Press, and Kate Torrey shepherded it through the beginning stages. Joe Parsons, my editor at UNC Press, and his assistant, Allie Shay, went above and beyond when I struggled to finish during a family crisis. Nancy Raynor caught last mistakes and helped me fix my endnotes.

Lisa and Josh Heineman saw this book grow from an idea into a finished product. They sustained me—through easy and hard times. Over the last months, Josh and I joked who would be finished first: he with his animation or I with my book. Josh won! At the last minute, Alison Bernstein came along and offered loving support. She read the entire manuscript, made insightful comments at the very end stages, and cheered me on to the finish line.

Abbreviations and Acronyms Used in the Text

BCH Boston City Hospital CDC Center for Disease Control (now the Centers for Disease Control and Prevention) CPC crisis pregnancy center CRSH Center for Reproductive and Sexual Health D&C dilation and curettage D&E dilation and evacuation EGC Emma Goldman Clinic FACE Freedom of Access to Clinic Entrances FOCA Freedom of Choice Act FWHC Feminist Women’s Health Center FWHO Fargo Women’s Health Organization FWWHO Fort Wayne Women’s Health Organization IUD intrauterine device LIFE Life Is For Everyone Coalition NAAF National Association of Abortion Facilities NAC National Abortion Council NAF National Abortion Federation NARAL National Abortion Rights Action League NCAP National Coalition of Abortion Providers NIH National Institute of Health NJWHO New Jersey Women’s Health Organization NOW National Organization for Women NRLC National Right to Life Committee NWHO National Women’s Health Organization ob-gyn obstetrics and gynecology; obstetrician-gynecologist OR Operation Rescue PPFA Planned Parenthood Federation of America UNC University of North Carolina WEBA Women Exploited by Abortion

Introduction

In the early 1970s, Heather, an eighteen-year-old student at the University of North Carolina (UNC), went to see Takey Crist, an assistant professor of obstetrics and gynecology (ob-gyn), known on campus as the sex man. Heather was pregnant and told Crist about her attempt earlier that year to get a prescription for the birth control pill at the student infirmary. The physician she saw told her that

he didn’t give contraceptives, and that the infirmary itself didn’t give contraceptives out to unmarried people. And then he said, did I want to talk about it [her decision to become sexually active], or had I already made up my mind? And I said that I had pretty much made up my mind. And he said, Well, you know, I like sex just as much as any other normal person. And then he said, It’s like a glass of wine, you don’t guzzle it, in the same way you don’t use sex to excess. And I just listened to him for a few more minutes, or rather, I didn’t listen to him for a few more minutes. And then I left.¹

Humiliated and frustrated, Heather gave up on her attempts to seek birth control. After several months of unprotected sex, she became pregnant and ended up in Takey Crist’s office.

Young single women who sought contraceptive advice and sex education during the late 1960s and early 1970s tended to find all doors closed. Lacking training in this area, most physicians felt uncomfortable with issues of sexuality and considered prescribing contraceptives to single women immoral. A 1970 survey by the American College Health Association found that of 531 institutions of higher education, half prescribed contraceptives to their students but less than 10 percent did so for unmarried minors.² In many states, North Carolina included, the age of majority was 21. High school and college students who sought medical care thus needed parental consent even for their most intimate health care needs.³ Most college-age women at UNC came from small North Carolina towns and had grown up steeped in religious values critical of premarital sex. As a result, they frequently felt they could not discuss their sexual activity with their parents. Susan Hill, who attended Meredith College in Raleigh, North Carolina, in the late 1960s, remembers that a lot of girls worried about their lack of access to birth control. There weren’t health clinics where you could walk in and get birth control. There was no Planned Parenthood in town. Your private doctors, you couldn’t trust them.… You were afraid they would tell your parents. So we were aware of [birth control] and virtually unable to get it.⁴

In the late 1960s and early 1970s, young college students who discovered that they were pregnant worried about their parents’ reaction and understood that an unwanted pregnancy could jeopardize their educational future. One young man described in an anguished letter to Crist how he and his pregnant girlfriend had approached his girlfriend’s mother to ask for her consent to an abortion—by 1971, after a recent reform of the state’s abortion laws, available to young women with parental consent.⁵ But rather than help the couple obtain an abortion, the mother forced her daughter to return home and, after the young man tried repeatedly to reason with her, moved herself and her daughter without leaving a forwarding address. I cannot even write to her anymore, he deplored, and concluded: My girlfriend could still be in school today if we could have gotten an abortion.⁶ Women students feared that parents would kick them out of the house or force them to return home before they could finish their college education. Many had witnessed the shocked reactions of parents when a sister or a brother’s girlfriend got pregnant. It was like hell in the family, one student recalled as she explained to Takey Crist why she could not tell her parents about her own unwanted pregnancy after her brother’s girlfriend had gotten pregnant.⁷ Children worried about the loss of financial or other support from their parents and concluded, as one girl noted, that their parents would probably hate me for the rest of my life if they found out about their unintended pregnancy.⁸ Others feared their parents might become violent. After one father repeatedly told his daughter that if she ever got pregnant, she wouldn’t be able to marry the guy—because he would have killed him, the daughter was in despair when she did get pregnant. My father is generally very levelheaded, she explained to Dr. Crist, and it takes a lot to make him mad, but I know that would push him right past the limit.⁹ Even students who did not fear their parents’ scorn felt that knowledge of a pregnancy outside marriage would cause their parents unnecessary anguish and disappointment.¹⁰ The fear of telling our parents was worse than the fear of the abortionist, Hill remembered. Being pregnant back then was worse.¹¹

Young women who saw their friends kicked out of school as a result of an unwanted pregnancy often remembered the circumstances of their friends’ expulsion for years after. Susan Hill recalled a Meredith College student who had gone to Cheraw, South Carolina, for an illegal abortion. She returned in the middle of the night with a severe infection. Her friends took the sick girl, who was barely able to walk, to the Meredith College infirmary from where she was quickly expelled. We never saw her again, Susan Hill remembered. They treated her and she left and we never saw her again. And for weeks, no one would tell us what had happened to her. Finally we heard she’d been packed up and sent home.… She just disappeared once they knew what she’d done. It’s like she never existed.¹² It did not take many stories like these for women students to understand that an unwanted pregnancy during their college years posed a serious threat to their future.

Of course, unwanted pregnancy was not an experience limited to young college-age women. Women of all backgrounds experienced unwanted pregnancies, and many of them sought an abortion even when the procedure was illegal. In the mid-1950s, estimates of the number of illegal abortions ranged anywhere from 200,000 to 1.2 million a year. Among urban, white, educated women, Alfred Kinsey found in his 1958 study of women’s sexual behavior that one-fifth to one-fourth of all pregnancies ended in abortion. The abortion rate climbed to 28 percent of all pregnancies among young wives between sixteen and twenty years old and to 79 percent among separated, divorced, and widowed women of all ages. Journalist Lawrence Lader noted in the mid-1960s that only about 8,000 abortions annually took place inside a hospital, constituting a fraction of the number of abortions performed each year.¹³ Some women seeking illegal abortions were fortunate to find a skilled abortion provider. Across the country, physicians, nurses, and midwives, among others, practiced in secrecy, offering thousands of illegal abortions. In his 1966 book, Abortion, Lader lists twenty-nine states in which he was able to locate at least one skilled abortionist. Women also traveled abroad to seek abortions in Mexico, Puerto Rico, and England or as far away as Japan. But in most places the practice of skilled illegal providers was shrouded in secrecy, and not all women seeking illegal abortions were able to afford their fees, let alone travel to foreign locations.¹⁴ Those without resources, poor white women as well as African American, Hispanic, and immigrant women, were forced to enter a world of underground abortions where care was frequently humiliating and the procedures dangerous. Its practitioners, Lader cautioned, preying mainly on poor and ignorant women, rarely have a medical degree. In an analysis of 111 consecutive convictions [of underground abortionists] in New York County, less than a third were physicians. The remaining two-thirds boasted such non-medical occupations as clerks, barbers, and salesmen.¹⁵ Before the mid-1960s, the estimated mortality rate from illegal abortion stood at 1,000 to 8,000 deaths per year. Almost 80 percent of all abortion deaths occurred among non-white women.¹⁶

With eye-catching headlines and photos, often on the front page of newspapers, journalists described an underground world that connected illegal abortion to organized crime syndicates. Such press coverage not only thrilled the public, historian Leslie J. Reagan notes, but also threatened women, physicians, and others engaged in illegal abortion with arrest and exposure.¹⁷ Other more serious investigations into illegal abortion drew attention to the devastating impact that criminal abortion laws had on women’s health and lives and argued for reform. Lader charged that criminal abortion laws contributed to a system in which minority groups, the poor, and the unsuspecting were punished doubly. No study, Lader noted, could begin to measure the physical and psychological injury inflicted on women by quack abortionists, often virtual butchers. Nor could it encompass the damage women inflict on themselves in attempts at self-abortion.¹⁸

Despite these grim statistics, countless women concluded that seeking an illegal abortion was preferable to carrying an unwanted pregnancy to term. The search for a skilled abortionist, Lader noted, may be the most desperate period in a woman’s life.¹⁹ Women were often resourceful and asked around to locate an underground abortion provider. Many asked friends or any close medical contacts they might have or turned to their family physician or obstetrician for help. Susan Hill remembered that students at Meredith College had a map directing them to a doctor in Cheraw, South Carolina, who charged $600 cash for an illegal abortion.²⁰ Others, however, searched for weeks without success, losing valuable time, which made the abortion procedure more difficult—and thus riskier—as pregnancy progressed.

It Was Very Oppressive for Women: Sexism in Medicine

Women’s frustration with the medical profession was not limited to worries about access to contraception and abortion. Women of all age groups found their physicians unresponsive to their health care needs and unwilling to address their concerns. Their frustration with the medical profession stood out most clearly in women’s relationships with their ob-gyns, most of whom were male. Since they were the specialists responsible for women’s most intimate health care needs, the personal demeanor and attitude of obstetricians and gynecologists toward women and sexuality were crucial to women’s comfort. A physician’s personal outlook and even his sexual bias can change a routine pelvic examination from a mildly embarrassing or uncomfortable experience into one that is demeaning and humiliating, an article in Modern Medicine warned.²¹ One prominent female ob-gyn noted about women patients’ comments concerning their (mostly male) physicians: One often sees such comments as: ‘He doesn’t explain anything to me.’ ‘He treats me like an ignorant and somewhat stupid child.’ ‘He can’t seem to understand or relate to any of my emotional needs and problems.’²² Medical education contributed to this state of affairs. Into the 1970s, many ob-gyn textbooks taught medical students that most of women’s complaints were the result of neuroses rather than symptoms of disease. Couched in a Freudian framework, the 1971 edition of Obstetrics and Gynecology, for instance, advised medical students that many symptoms of illness in pregnancy, such as excessive nausea or headache, are really a result of her fear that the rewards [of pregnancy] will be denied because of past sins.²³

Matters improved little once medical students left their textbooks behind and entered residency programs. Teaching practices frequently reinforced the notion that physicians need not listen to their patients. To teach residents at large teaching institutions how to conduct pelvic exams, for instance, instructors hid the woman’s upper body behind a screen or curtain or put a bag over her head so that the resident did not have to learn a patient’s identity or interact with her.²⁴ Indeed, medical students into the 1980s recalled learning how to perform pelvic exams at major university hospitals on patients who had been anesthetized for unrelated procedures.²⁵ As a result, many physicians were at best uncomfortable with their patients, at worst paternalistic and patriarchal. It was very oppressive to women, a member of Iowa City’s feminist health collective, the Emma Goldman Clinic (EGC), remembered.²⁶

Starting in the late 1960s, women across the country began to challenge the patriarchal attitude of medical professionals. They complained to more sympathetic physicians about the demeaning behavior of their colleagues and came together to discuss their health care providers and search for answers to their medical questions. A group of women in Boston began to discuss childbirth, sexuality, and their doctors, whom they found condescending, paternalistic, judgmental, and non-informative.²⁷ Group members researched and educated one another on a number of topics relating to women’s health and in December of 1970 published the results under the title Women and Their Bodies, which three years later became better known as Our Bodies, Ourselves.²⁸ Women in Chicago formed Jane, an underground abortion referral service. Frustrated with the cost of abortion and their inability to ensure that women were not exploited by underground abortionists, Jane members quickly moved from counseling and referral to performing the abortions themselves. Between 1969 and 1973, almost 11,000 women received abortions through Jane. This, Jane members concluded, is how the procedure ought to be done: by women, for women, as acts of liberation and empowerment.²⁹ Women in San Francisco passed out a leaflet with the names of physicians in Mexico and Japan who performed abortions. As demand for the list soared, feminists in California established the Association to Repeal Abortion Laws and created mechanisms for regulating illegal abortion practices so as to ensure that they were sending women to safe practitioners.³⁰ In Los Angeles, Carol Downer, a housewife turned health activist, began to teach women how to perform cervical self-exams. In the fall of 1971, Downer and Lorraine Rothman, who had developed a menstrual extraction kit, the Del-Em, embarked on a twenty-three-city tour across the United States to demonstrate cervical self-exams and menstrual extraction and encourage women to start their own clinics.³¹ They traveled to Iowa City, Iowa, for instance, where they taught a group of young feminists about cervical self-exams and discussed the establishment of women’s health clinics. Cervical self-exams and the idea of starting a women’s health clinic spread like wildfire. As one Iowa City activist recalls, "We were everywhere with self-help, educating women about their bodies. And I think that part of what we did, and countless other women in this country, Our Bodies, Ourselves, has helped young women to not feel as uptight about their bodies."³²

Men, too, participated in the burgeoning reform movement surrounding sexual and reproductive health. After New York journalist Lawrence Lader found a number of reliable underground abortion providers when he researched Abortion, he shared the information with women who wrote to him asking for referrals.³³ Several prominent clergymen decided to establish a referral service to provide women with the names of trustworthy abortion providers. Within a year, clergy across the country, led by Reverend Howard Moody of Judson Memorial Church in New York City’s Greenwich Village, began to organize Clergy Consultation Service chapters across the country. Clergy members trained in problem pregnancy counseling and, like California feminists, conducted extensive interviews and reviews of underground abortion providers to select those who were safe and trustworthy.³⁴ In the late 1960s, William R. Baird, a thirty-four-year-old medical school dropout and contraceptive salesman, emerged as a crusader for sexual and birth control information on college campuses around the country. In the spring of 1967, students at Boston University invited Baird to speak about sexuality and contraception. After Baird displayed various contraceptives before an audience of more than 2,500 people and gave an unmarried female student a can of Emko contraceptive foam, the Boston vice squad arrested him and charged him with crimes against chastity. Baird used his arrest to draw attention to the repressive attitudes that not only stifled people’s intimate lives but also jeopardized women’s health. Following his arrest and subsequent court battle, students across the country rallied in support of Baird, holding public demonstrations and demanding reproductive rights for women.³⁵ Male students offered lectures on birth control to classmates and wrote advice manuals on sexuality and reproduction. They relied on the assistance of physicians, psychologists, and educators who began to participate in the establishment of student health services that offered information about sexuality and contraception.³⁶

They were joined by progressive physicians who worked to improve their patients’ health care experiences. In the late 1960s and early 1970s, for instance, student health services at Brown, Stanford, Harvard, Yale, and the Universities of Illinois, Minnesota, Massachusetts, and Chicago began to offer contraceptive advice. Bolstered not only by growing demands from college students but also by increased funding for adolescent medicine under the War on Poverty, leaders in adolescent medicine lobbied for a change in state laws permitting minors to consent to treatment of sensitive health issues. By the late 1970s, adolescents had obtained the right to obtain contraceptives without parental consent.³⁷UNC stood at the center of this change. After the North Carolina legislature passed an abortion reform bill in 1967 that legalized therapeutic abortion if a woman could obtain the support of three physicians, Takey Crist and the Department of Obstetrics and Gynecology at UNC’s Memorial Hospital opened access to abortions and institutionalized sex and contraceptive education and health services on campus.³⁸ As word spread that physicians were increasingly willing to honor women’s abortion requests, many physicians were confronted with patients who would have sought an underground abortion earlier. Students able to access these services expressed their immeasurable sense of relief. As one student wrote to Takey Crist after her abortion, I have been given a beautiful chance at life again.³⁹

By the end of 1972, students received more than contraceptive advice at Student Health. UNC freshmen learned about the availability of these services during freshman orientation. At the Student Stores, they could purchase a copy of the sex education booklet Elephants and Butterflies, written by three medical students under the direction of Takey Crist, which provided detailed information on sexuality, reproduction, and contraception and informed students where to turn for birth control and abortion. Students were able to write to the student newspaper, the Daily Tar Heel, which published a weekly column, Questions to the Elephants and Butterflies, in which Crist and student Lana Starnes answered questions about sex. They could seek help from a peer counselor at the Human Sexuality Information and Counseling Service, which held daily office hours at the Student Union, offering advice on any sexual issue imaginable. For a more academic approach, students could enroll in HEED 33, an undergraduate course on human sexuality developed by Takey Crist, or invite Crist to present an evening education program at their dorm, sorority, or fraternity. Finally, they could seek contraceptive advice and therapeutic abortions at the Health Education Clinic established by Crist or call the Clergy Consultation Service (all phone numbers were listed in the back of Elephants and Butterflies) for a referral to abortion services in Washington, D.C., or New York State.⁴⁰

This literal explosion of sex education services was part of a small but growing trend on campuses across the country. If, in the 1960s, state laws outlawing the distribution of contraceptives to unwed minors had significantly limited access to birth control information and devices, the 1972 Supreme Court decision Eisenstadt v. Baird greatly aided efforts to establish reproductive health services on college campuses. If the right of privacy means anything, the decision read, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.⁴¹ In response to student interest, Planned Parenthood-World Population initiated a program of student community action to acquaint college students with the latest contraceptive techniques and devices and provide them with a vehicle for establishing contraceptive services on college campuses.⁴² Whereas a 1966 survey conducted by the American College Health Association had found that physicians at only thirteen U.S. colleges and universities prescribed oral contraceptives to unmarried students, and most of these did so only for women over the age of twenty-one, by 1970 the association counted 118 institutions offering contraceptive services. Still, as historian Heather Prescott has pointed out, this was a small percentage of the more than 2,500 U.S. colleges and universities at the time.⁴³

The Making of Roe v. Wade

A number of factors converged by the 1960s to set the stage for abortion reform. Responding to medical complaints about the lack of clear legal guidelines, the American Law Institute, made up of attorneys, judges, and law professors, proposed a model abortion law in 1959 that would clarify the legal exception for therapeutic abortion and enshrine it in law along more liberal lines. During the following decade, legal and medical organizations promoted the law institute’s model in state legislatures and in the media. Women’s rising labor force participation and college attendance contributed to falling birthrates and climbing abortion rates. Their growing need for access to safe abortion services became painfully evident to the medical professionals who were staffing the nation’s emergency rooms and taking care of women who had obtained illegal abortions. The specter of women dying as a result of illegal abortions propelled activists who hoped to protect the lives of women by making therapeutic abortion more accessible.⁴⁴

In 1962, the Sherri Finkbine case raised public awareness of the dangers of thalidomide, a tranquilizer that could cause fetal defects, and inaugurated a nationwide debate about the use of abortion to avoid birth defects. Finkbine, the host of a popular children’s TV show, feared for her pregnancy after taking thalidomide and planned to have a therapeutic abortion performed by her physician. But her plan was thwarted when her situation became news and the hospital backed away. Finkbine, whose case became national and international news, subsequently traveled abroad for an abortion. Fears about the dangers of thalidomide were closely followed by a German measles epidemic that hit the United States in 1963. The ensuing debate not only altered national consciousness concerning abortion but also played a crucial role in emerging reform efforts.⁴⁵ In 1964 a group of prominent physicians, lawyers, clergy, and others established the Association for the Study of Abortion, which used the influence of its many experts to educate the public about abortion reform.⁴⁶ By the end of the decade, feminists began to organize to put pressure on the medical profession and state legislatures to repeal abortion laws.⁴⁷

By the mid-1960s, state legislators across the country were debating abortion reform based on the American Law Institute’s model law, and in 1967 Colorado, North Carolina, and California were the first states in the nation to pass reform legislation, closely followed by Alaska, Hawaii, and New York.⁴⁸ On April 11, 1970, New York governor Nelson Rockefeller signed a bill legalizing abortion in New York. The bill did not limit access to abortion to residents of New York, and on July 1, 1970, the day the law took effect, over 350 women called the Family Planning Information Service to ask for appointments. Although fewer than 100 of the 2,000 women who registered in New York that first day received legal abortions, over the coming 21/2 years thousands of women traveled to New York for a legal abortion.⁴⁹ And New York was not the only state to legalize abortion. Two court decisions in the fall of 1969 led to abortion reform in California and Washington, D.C. On September 5, 1969, the California Supreme Court, in People v. Belous, declared California’s abortion law unconstitutional and exonerated physician Dr. Leon Belous, who had been indicted for performing illegal abortions. Following this decision, California hospitals relaxed their abortion policies, and California’s physicians increased the number of abortions they performed. By 1972, the state’s abortion rate had climbed to 135,000 legal abortions per year, the second highest total behind New York. People v. Belous served as a precedent for a score of other challenges to similar state laws. When, two months later, Judge Arnold Gesell declared the District of Columbia abortion law unconstitutional in United States v. Vuitch and exonerated Dr. Milan Vuitch for performing illegal abortions, he cited the California decision. Following Gesell’s decision, Vuitch established an outpatient abortion clinic a few blocks from the White House with four treatment rooms, a laboratory, and a recovery room. Soon, the clinic was taking 100 abortion cases a week. In 1971, Vuitch—with the help of the National Abortion Rights Action League (NARAL)—opened a model outpatient clinic called Preterm. Preterm was quickly followed by two other outpatient clinics in Washington, D.C., and by the end of 1971, 20,000 women had received legal abortions in Washington, D.C.⁵⁰ Developments in California, New York, and Washington, D.C., were followed by a repeal of abortion laws in Hawaii and Alaska shortly thereafter.⁵¹

On January 22, 1973, the U.S. Supreme Court legalized abortion with its Roe v. Wade and Doe v. Bolton decisions. The decisions overturned nearly all state abortion regulations existing at the time and expanded the fundamental right of privacy established in 1965 in Griswold v. Connecticut—a decision which held that intimate marital decisions around family planning were protected by a right of privacy—to include abortion.⁵² Women, however, did not gain a right to legal abortion. Rather, Roe v. Wade permitted women, in consultation with their physicians, to decide in the privacy of a physician’s office whether or not they wanted to end a pregnancy. Women’s and physicians’ ability to choose an abortion was not entirely unregulated. The decision set up a trimester framework during which a woman was free of state constraints on her decision if she was in the first twelve weeks of pregnancy. If she was in her second trimester, thirteen to twenty-four weeks, the state could restrict access to abortion only when necessary to protect the woman’s health. The court established the twenty-fifth week of pregnancy as a threshold after which it considered the fetus viable and permitted the state to invoke an interest in protecting the fetus and to restrict abortion. However, a state could not restrict abortion when the procedure was deemed necessary to preserve a woman’s life or health. In Doe v. Bolton, the Supreme Court further removed any requirements that women be a resident of the state in which they sought access to abortion and struck down requirements that abortions be performed in a hospital setting and that women obtain permission from a hospital abortion committee or that two other doctors endorse her physician’s recommendation of an abortion.

Since women had no right to an abortion procedure, it was their own responsibility to find an abortion provider and pay for the procedure. As a result, women’s actual access to abortion procedures emerged as a significant issue. Indeed, the Roe v. Wade decision signified the beginning, rather than the end, of a protracted political, legislative, and legal battle over access to abortion. As the antiabortion movement gained strength in the 1970s, antiabortion activists set out to overturn the Roe v. Wade decision by introducing a Human Life Amendment and eliminated public funding for any aspect of abortion care with passage of the 1976 Hyde Amendment. Still, throughout the 1970s and 1980s, the U.S. Supreme Court protected abortion as a private choice. The justices pondered two questions: First, what limitations on abortion are permissible under Roe? And second, did the right to an abortion require states to support access to the procedure for women who found it difficult to actually obtain an abortion? Initially, as states began to draft laws that would restrict women’s access to abortion, the U.S. Supreme Court, in three key decisions, struck down attempts to limit access to abortion. In the first case, Planned Parenthood of Central Missouri v. Danforth (1976), the Supreme Court struck down a Missouri law requiring parental consent to a minor’s abortion, a husband’s written consent to his wife’s abortion, a woman’s written and informed consent, and a ban on second trimester saline procedures. Seven years later, in Akron v. Akron Center for Reproductive Health, Inc. (1983), the court struck down a twenty-four-hour waiting period, a hospitalization requirement for abortions after the first trimester, parental consent to abortions for girls aged fifteen or younger, a doctor-only counseling provision, a requirement that women receive specific information during the counseling session, and strict instructions about the disposal of fetal waste. In the 1986 Thornburgh v. American College of Obstetricians and Gynecologists decision—a case that challenged Pennsylvania’s 1982 Abortion Control Act—the court rejected a state-mandated counseling script read by doctors to patients, a requirement that doctors attempt to save fetuses in postviability abortions, a requirement that two doctors attend postviability abortions, and a reporting requirement that allowed public access to abortion records.⁵³

But because a central premise of the Roe ruling holds that a woman lacks a fundamental right to abortion per se, questions of public funding fared less well before the Supreme Court. In two cases, Maher v. Roe (1977) and Harris v. McRae (1980), the court determined that neither states nor the federal government was obligated to provide abortion funding for the poor. These decisions created an obvious class distinction. All women could choose abortion, but only those able to pay for the procedure could actually realize their choice and obtain an abortion. The cases also signaled the advent of a theory of negative rights that emboldened the pro-life movement. The majority of justices agreed that a woman’s access to abortion could be denied through state omission—a lack of financial assistance to poor women—although not through active state-imposed hurdles. The state or federal government could thus legitimately assert its preference for birth over abortion by denying support for abortion.⁵⁴

In 1989, the U.S. Supreme Court also began to shift away from its refusal to allow state-imposed restrictions to abortion. In its Webster v. Reproductive Health Services decision, the justices for the first time questioned the trimester framework that had established a protected zone for abortion and had limited states’ ability to favor birth over abortion until the third trimester, when the Roe decision had considered the fetus to be viable. Now the court argued that, owing to the advancement of medical technology, viability changed over time and place. A fetus not considered viable in 1973 might, with advances in medical technology, be considered viable by the late 1980s. One not viable in a rural community hospital might be considered viable in a sophisticated neonatal unit in an urban hospital. Unwilling to leave the judgment over fetal viability in the hands of physicians, Webster asserted that states could express interest in fetal life prior to viability and could withhold state resources to assert this preference. In practice this meant that the state of Missouri was permitted to bar public facilities from offering abortion services. While Roe had protected abortion until viability, Webster embraced a new vision in which states could now express an interest in fetal life. The Supreme Court now allowed states to second-guess physicians by imposing specific directions and restrictions on abortion services. (Webster, for instance, upheld a Missouri provision that required physicians to perform viability tests before performing an abortion.)⁵⁵

The shift away from physician authority to a stronger role of state legislatures in the performance of abortion was further strengthened in the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. Indeed, states wishing to impose abortion restrictions now simply had to demonstrate that the burden imposed on women’s access to abortion was not undue—that is, placed no substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.⁵⁶ This shift greatly undermined doctors’ authority in abortion decisions, replacing the physician as gatekeeper to abortion with the state legislature, which could now set very precise terms under which abortions may take place. In Casey, the justices permitted abortion barriers that the Supreme Court had found unconstitutional in previous cases: a twenty-four-hour waiting period, state-mandated counseling, parental consent for minors, and a reporting requirement. The court also began to treat women as a group that needed to be protected from their own choices. Upholding state-mandated counseling language, for instance, suggested that women seeking abortions needed counseling, that physicians who counsel women before an abortion needed to be told how to counsel their patients, and that both parties were unreasonable and needed the state to step in.⁵⁷ Empowered by Casey, Supreme Court justices subsequently further expanded restrictions on abortion. Most significant, the 2007 Gonzales v. Carhart decision upheld the first ban on a particular abortion procedure—intact dilation and evacuation (D&E), or the so-called partial birth abortion procedure—without granting an exception to women’s health or life. More broadly, for the past two decades states have drafted increasingly inventive legislation to impose all kinds of restrictions on abortion services, ranging from requiring particular building codes to the requirement that abortion providers have privileges at local hospitals to attempts to ban abortions after twenty weeks’ gestation.⁵⁸ None of these restrictions increased the safety of abortion procedures, which were already the safest outpatient procedures available.⁵⁹ All of them made abortion services more difficult to access by placing obstacles in the way for women seeking abortion services or forcing abortion providers to raise their prices to meet burdensome and costly requirements.

Writing the History of Legal Abortion

The topic of abortion has captivated writers for decades. Given that it touches on questions of sex, life, death, and morality, this attention is not surprising. Scholars tracing the history of women’s health activism have chronicled the history of feminist challenges to illegal abortion, the emergence of the women’s health movement, and the establishment of feminist clinics which emerged as a result.⁶⁰ Others have traced the roots of antiabortion activism, the escalation of violence, and the impact on the pro-choice movement.⁶¹ A third group of scholars have analyzed the impact of policies limiting women’s access to abortion. They have charted changes to abortion funding, tracked policies that regulate access to abortion, and analyzed the impact of legal decisions.⁶² But despite the fact that policy approaches to abortion and the cultural climate surrounding abortion care underwent a fundamental shift over the past four decades, we lack a comprehensive study of the events that have changed the experiences of abortion