Abortion before and after Roe v. Wade: an historical perspective.

Author:Garrow, David J.
Position:Symposium on abortion
 
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I.

Having spoken at a number of events similar to this one with Sarah Weddington, I now know from experience that it is always better to go before Sarah rather than after. But I am certain that there also is one reason, not listed in your program, for why I am here today, and that is that there are several things that I am going to say that probably will allow all of our upcoming speakers--no matter what their views on abortion--to agree unanimously that, if nothing else, Garrow is wrong.

I am going speak largely as a historian this evening, in part because the recent murder in Buffalo of Dr. Barnett Slepian(1) requires us to appreciate all the more so how the present-day realities regarding the availability of abortion services are not all that fundamentally different from what history tells us were the realities of abortion even back before Roe v. Wade(2) itself.(3)

Before Roe, and before abortion was first legalized here in New York in 1970,(4) and even before the first abortion liberalization statutes were passed in Colorado, North Carolina, and California in 1967,(5) abortion was very widely available in many places all across the United States if you were a woman who had both good medical contacts and sufficient money.(6) If you lacked either those contacts or the money, then abortion was either not available or available only under exceptionally unsafe circumstances.(7) It is a tremendously under-appreciated part of the history of this issue just how many fully credentialed and well-respected doctors were, "under the table," so to speak, providing abortion services prior to 1967 for women patients whom they knew or who were referred by mutual acquaintances.(8) Even before Roe, even before the landmark change in New York State law, there were hundreds upon hundreds of doctors in this country who secretly performed abortions for women whom they knew and who could pay.

But that bifurcation in availability--that a medical abortion was reasonably easy to obtain for women who had money and connections, and extremely difficult for women who did not have money and connections--is a consistent thread across the course of this century from the early 1900s right up to the present time. Indeed, as Sarah alluded to in mentioning Griswold v. Connecticut,(9) it is important for us also to remember that the entire first two generations of women's health clinics all across this country were created precisely to eliminate that bifurcation or discrimination in access to services, not with regard to abortion, but with regard to contraception and birth control.(10)

The entire history of the struggle to legalize access to contraception--first here in New York,(11) then in Connecticut and in Massachusetts, starting in the 1910s and going right up to Griswold in 1965, and then to Eisenstadt v. Baird(12) in 1972, was in essence about that very same issue. Even in the 1910s when Margaret Sanger first began work in New York City, women of means who could afford private doctors had quite easy and utterly private access to diaphragm fittings and other reproductive health services.(13) But what Mrs. Sanger and her early compatriots, like Katharine Houghton Hepburn (mother of actress Katharine Hepburn) in Connecticut, all sought was to make that very same access available to less-privileged women who could not afford private physicians.(14) Since that equal access was not offered by traditional or establishmentarian medical institutions, the birth control activists of the 1920s and 1930s worked to create the same sort of separate and very publicly identifiable women's health clinics that are the focus of the abortion rights struggle today.(15)

First in New York in the 1920s,(16) then in Massachusetts and Connecticut in the late 1930s,(17) those early birth control clinics became the target of predominately Roman Catholic religious forces which were unwilling to tolerate the publicly advertised availability of birth control services.(18) No one truly denied the fact that these services were privately and invisibly available all across those states to women who could afford private physicians and who did not need to depend upon publicly visible clinics.

II.

As Sarah very nicely described, the early origins of Roe grew very directly out of the constitutional precedent of Griswold. To my mind, perhaps the most wonderful story in twentieth-century American constitutional law involves the way in which, between 1966 and 1969, and without any sort of NAACP Legal Defense and Educational Fund coordinating and bringing everyone together, multiple sets of young attorneys, all operating not just independently of each other, but, in all frankness, oftentimes in ignorance of each other's existence, all started to utilize the argument that Griswold's fundamental right to marital privacy in the use of contraception could be extended to cover a woman's fundamental right to choose whether or not to continue an unwanted pregnancy.(19)

Prior to Griswold, there really had never been any public contention ever in this country that abortion should be any sort of fundamental or constitutionally protected right.(20) The early abortion reformers or law-reform advocates of the 1960s were people who almost without exception envisioned liberalizing state anti-abortion laws so that on a wholly case-by-case basis, individual women could petition for medical approval of a legally permissible abortion only because their particular pregnancy posed some specific threat to their health or involved a potentially defective fetus.(21) But growing out of those earliest "reform" efforts came a very rapid evolution, starting essentially only in 1968 and 1969, toward the far more liberal or indeed radical idea of abortion law "repeal." An increasing number of young attorneys came to grasp the Griswold-based idea that abortion law change did not have to be put forward simply in terms of liberalizing existing statutes by legislatively adding one or more new statutory exceptions that would cover women with health-threatening pregnancies, but that instead the issue could be argued in court as a question of challenging those existing statutes as violative of women's--and doctors'--constitutional rights.(22)

In late 1969 and early 1970, there was really a sort of nationwide legal groundswell, in which Roe v. Wade in Texas and its eventual Supreme Court companion case of Doe v. Bolton(23) from Georgia, were only two out of approximately fifteen to twenty roughly simultaneous cases.(24) If Judy Smith and other students in Austin, and Linda Coffee in Dallas, along with Sarah, had somehow not launched Roe in early 1970,(25) or if Judith Bourne and Margie Hames and other women in Atlanta had not instigated Doe v. Bolton,(26) the U.S. Supreme Court nonetheless would have had to confront the case of Jane Hodgson(27) from Minnesota, or a case from New Jersey, or one from Connecticut, or half-a-dozen or more cases from a variety of other states.(28) Whenever anyone out of ignorance happens to suggest that the Supreme Court's ruling in Roe v. Wade was just a happenstance accident of one woman's case(29) forcing Justice Blackmun and his colleagues to resolve an issue which they otherwise could have "ducked" or significantly postponed, that simply was not the historical situation or the litigation scene that was confronting the Supreme Court during the 1971-1972 term.(30) From the vantage point of the Court, Roe and Doe were simply the first two of what eventually became more than a dozen constitutional challenges to state anti-abortion laws that were pending on the Court's own docket, with all of the additional cases being "held" for the resolution of Roe and Doe.(31) In the weeks following the announcement of the Roe and Doe decisions, the Court handed down rulings resolving all of those additional constitutional challenges in accord with Roe and Doe.(32) Thus, Sarah Weddington's role in litigating Roe v. Wade was just one example of what was truly a nationwide movement of young lawyers who brought the fundamental issue of a woman's constitutional right to choose abortion to the Supreme Court's doorstep from state after state after state.

III.

The second very important development that took place between 1967 and 1970 was the political groundswell which came to its most important fruition here in New York State with the April 1970 legislative passage of the repeal statute which then took effect on July 1, 1970.(33) That day represented the first time there ever had been nondiscriminatory access to abortion services in this country. But it is also crucially important to appreciate how the service-delivery choices that pro-choice activists initially made when abortion did first become legal here in New York have turned out to be choices that now, three decades later, most ironically have proven in some ways to be extremely deleterious to women's real access to nondiscriminatory reproductive health services.(34)

In that summer of 1970, with their eyes first and foremost on how to offer modestly-priced rather than potentially overpriced abortion services to the thousands of women who were expected to flock to New York State, and particularly New York City, from all across America, pro-choice activists almost unanimously concluded that the establishment of separate or "free-standing" clinics providing principally just abortion services was the only economically-advisable way to proceed. Thus, the service-delivery pattern that quickly developed during the latter half of 1970, especially in New York City, featured a number of large free-standing clinics which before long were performing the great majority of all New York abortions.(35) This pattern also meant that in stark contrast to the secretive and undocumented pre-1970 world where scores and scores of individual doctors had found themselves performing abortions, legalization of abortion ironically served to diminish the number...

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