Lonely Voices: Abortion Reformers and the Origins of Change, 1933–1967
Alan F. Guttmacher was no radical, but he was as respectable a rebel as any doctor could be. The son of a rabbi, both he and an identical twin brother, Manfred, had been born in Baltimore in 1898. Alan graduated from Johns Hopkins University in 1919 and then four years later from Hopkins’s Medical School. He did a three-year residency at Johns Hopkins Hospital, and in 1929 joined its staff, but in later years he would sometimes suggest that he had learned less at Hopkins than from “a decade of Monday-night beer drinking with H. L. Mencken and a small group of his intimates in the back room of a mid-town Baltimore Gasthaus.”
But during his Hopkins residency Alan Guttmacher had three experiences that always stayed with him. The first was the death of a mother of four children. The second was the death of a fifteen-year-old girl, and the third was the death of a woman in middle age. All were victims of illegal abortions at the hands of untrained nonprofessionals. And soon after, when Guttmacher sought to perform an abortion for a twelve-year-old girl who had been impregnated by her father, his distinguished mentor, J. Whitridge Williams, had said no. Only if the local district attorney would provide a written letter, excepting them from any culpability under Maryland’s criminal statute prohibiting all abortions except those necessary to save a woman’s life, would a Hopkins doctor be allowed to proceed. Lacking such legal permission, seven months later Guttmacher delivered the twelve-year-old’s baby.1
By the early 1940s Baltimore featured two quite competent and privately well-known doctors who performed abortions. Guttmacher knew them both, and on appropriate occasions would make referrals to the one he knew best—G. Lotrell Timanus, “Dr. Tim.” In 1942 Alan Guttmacher became chief of obstetrics at Baltimore’s Sinai Hospital, and that same year, speaking in New York at the annual meeting of the Birth Control (soon to be Planned Parenthood) Federation of America, he gave voice to his strong feelings and expressly called for extensive liberalization of antiabortion laws so as to allow for legal “therapeutic” abortions whenever a woman’s health might be at risk. The New York Times thought such a declaration by a reputable, university-affiliated doctor to be newsworthy, and gave prominent attention to Guttmacher’s assertion that “the patent hypocrisy and holier-than-thou attitude of the medical profession in regard to this problem is revolting.”2
Alan Guttmacher was not the first person to call for significant liberalization of America’s nineteenth-century antiabortion laws, but the number of predecessors was very modest indeed. The first such statute had been enacted in 1821 in—where else—Connecticut, and was strengthened in 1830, but even then followed the traditional seventeenth-century English standard of criminalizing abortions only if they took place after the “quickening”—or detectable movement—of the fetus. In 1828, however, New York became the first American state to follow a more recent English judicial precedent by enacting a statute that made abortion at any stage of pregnancy a felony, thereby erasing the importance otherwise assigned to “quickening.” Still, enforcement of the new standard was erratic at best, and by 1850, by one expert’s later estimate, “American women were aborting at least one of every five pregnancies.”
But starting in the mid-1840s a new wave of pressure for tougher antiabortion statutes, and more serious enforcement efforts began to build, with medical doctors often taking the political lead. By the end of the 1850s, the physicians’ antiabortion efforts were making significant headway, and in 1860 Connecticut, again leading the way, passed a comprehensive new law eliminating the quickening distinction, prohibiting any abortion-related advertising, and mandating criminal punishment for a woman who obtained an abortion as well as for whoever performed it. “This 1860 Connecticut law,” a principal historical expert later explained, “set the tone for the kind of legislation enacted elsewhere in the United States during the succeeding twenty years.” By the final two decades of the nineteenth century an “official consensus against abortion” had solidified in the law of each and every state of the union, with almost all of the prevailing statutes prohibiting all abortions, irrespective of the stage of pregnancy, except in cases where a woman’s life was directly at risk. Those years after 1880 witnessed both a very steep decline in the number of abortions taking place across the United States and a very pronounced increase in police and court enforcement of substantial criminal penalties against those who provided abortions.3
By 1930, when Alan Guttmacher began to take an active interest in the problem, the best-available demographic estimates were that at least eight hundred thousand illegal abortions a year were taking place in America, at a human cost of perhaps somewhere between eight thousand and seventeen thousand women’s deaths each year. The principal abortion statistics expert of that time, Frederick J. Taussig, inescapably had to work with numbers that often were little better than well-informed guesses, but most observers, both then and later, estimated that over the course of the Depression decade of the 1930s, the overall proportion and number of American pregnancies that ended in illegal abortions was increasing significantly.4
The apparently expanding scale of the problem generated the first smattering of calls for legal reform. The first outspoken call for change, however, came not from an American but from a highly individualistic Canadian-born female leftist in England, F. W. Stella Browne, who styled herself as a sexual radical and supported herself by working as a librarian and translator. Browne had been calling for the legalization of abortion in England since as early as 1915, but her remarks never attracted any significant attention, even in professional circles, in the United States. Browne championed repeal of abortion laws, not simply liberalization for some “therapeutic” reasons, and in a 1929 paper at a London Sexual Reform Congress, Browne had forthrightly advocated “absolute freedom of choice on the woman’s part in the early months of pregnancy,” or “up to the fourth month.” Perhaps quite appropriately, given her venue, Browne’s advocacy of “the full right of free motherhood” was couched less in terms of family planning than in a context of sexual freedom. It was important, she explained, for women to be able “to enjoy and benefit by normal intercourse without enforced motherhood,” and it was “essential” to “separate the fulfillment of the sexual impulse from the procreation of children.” “Not abortion, but forced motherhood, is the crime,” she told her audience.
Six years later, in another conference paper, Browne reiterated her firm position: “The woman’s right to abortion is an absolute right, as I see it, up to the viability of her child.… It should be available for any woman, without insolent inquisitions, nor ruinous financial charges, nor tangles of red tape. For our bodies are our own.” Stella Browne, however, remained almost completely unknown in the United States, and the first American publication of any of her remarks, in a little-known educational journal, did not occur until 1952, just three years before her death.5
In 1933, however, two American doctors each published small books advocating legal change. William J. Robinson had been a well-known proponent of birth control, and the author of several dozen diminutive books and pamphlets concerning reproduction and sexuality, since just after the turn of the century. In The Law Against Abortion, issued by the Eugenics Publishing Company, Robinson spoke of “the right of the woman to her own body” and advocated an ideal goal of “the complete and total abrogation of any law against abortion.” If that proved impossible, he would heartily welcome “at least a very radical modification,” and since “there are cases in which the induction of an abortion is inevitable, necessary, [and] imperative, it is important that both the attitude of the public and the law be changed.” Robinson willingly conceded that “Abortion is an evil, but in some cases it is so decidedly the lesser of two or three evils that there can be no question of the proper choice.”
What Robinson actually had in mind with regard to statutory change, however, fell well short of total repeal. Instead, “a clause could be inserted permitting abortion only until the end of the third month, and only a certain number of times in the case of any given woman.” He explained that “As a general rule, abortion should be permitted up to the end of the third month only. Only in exceptional cases and for valid reasons should abortion be permitted in the fourth, fifth or sixth month. Of course therapeutic abortion should be permitted in any month according to the physician’s judgment.”6
If Dr. Robinson seemed to write without fully organizing his thoughts, gynecologist Abraham J. Rongy expressly favored a statutory liberalization which would give sanction “to the performance of abortions under circumstances justified by the health of the patient, her economic condition, the danger of a social stigma, or any one of a number of valid reasons.” Rongy believed that “the tide of public opinion is swelling in favor of greater freedom in the matter of childbearing,” but he acknowledged that “the national timidity on the subject has proved to be an effective bar against a rational examination of what the problem is.” What was first necessary, he stressed, was the attainment of “a temperate legislative attitude toward all sex problems and primarily toward birth control, and the dissemination of contraceptive information.” Of that he was quite hopeful, and “When that has been fully achieved the time will be ripe for a valid code on abortion.”7
Neither Rongy’s nor Robinson’s book was widely distributed, but, unlike Browne, their statements were at least cited by other writers considering the subject. One or two law journal notes included passing remarks supporting “unconditional repeal,” and an occasional article in the popular press intimated clear support for legal change. With few exceptions, however, open discussion of whether abortion should to some greater degree be legalized simply did not take place. Even the American Birth Control League’s Birth Control Review referred in passing to abortion as “the murder of the unborn child,” and as late as 1939 Morris Ernst and Harriet Pilpel, also writing in the Birth Control Review, explicitly termed abortion “the antithesis of contraception.” When a Denver doctor who was also a Colorado state Senator, George A. Glenn, wrote that same year to Margaret Sanger to inform her of his intent “to introduce a bill that would legalize the option of any woman in procuring an interruption of her pregnancy,” Sanger and Birth Control Federation officials almost panicked. The Coloradan’s bill referred to abortion as an “act of birth control,” and the New Yorkers, fearing that such a measure would further confuse some people as to the distinction between contraception and abortion, begged him to change plans. Glenn explained how his interest had resulted from the fact that “Recently various magazine articles have expressed the desired freedom of women under man-made laws,” and correctly noted that “I have never known of this type of legislation being offered before.” Fortunately, at least in the judgment of Sanger and the BCFAers, Glenn’s bill attracted no attention whatsoever and was not emulated elsewhere.8
The dangers of illegal abortion were considerable, especially for the lives and health of the women who ended up with nonprofessional practitioners rather than with doctors operating at the margin of their profession. Police enforcement of antiabortion statutes understandably tended to net the most unskilled practitioners rather than the most successful, but even the rare magazine article that hinted at “possible legislation” so that existing laws could be “adjusted” nonetheless laid more emphasis on the dangers that the procedure entailed. The National Committee on Maternal Health sponsored a 1942 conference on “The Abortion Problem,” but it was only the very rare doctor who explicitly called for legal change. “The whole underground movement of abortion with its butchering quacks, midwives and incompetent doctors is the result of these statutes now in force,” one dissenting physician wrote in 1942 in a southern medical journal. “There must be room for a doctor’s honest discretion—flexibility is needed. Only completely legalized abortion can untangle the unhappy mess that 75 years of blind and inhuman legislation has created.”9
As of even the early 1950s, however, the level of open discussion of the subject, even in limited-circulation professional journals, was truly minuscule.10 In 1955 newly hired PPFA medical director Mary S. Calderone organized a conference on “Abortion in the United States,” principally to highlight “the need for contraception in order to avoid the need for illegal abortion.” The one scheduled legal speaker, Yale professor Fowler Harper, was at the last moment unable to attend, but other participants included Alan Guttmacher and his low-visibility, now-retired Baltimore friend, G. Lotrell Timanus. A Yale law student whom Harper sent in his stead, Edwin M. Schur, authored a contemporaneous magazine article that drew attention to what he called “abortion’s skyrocketing death rate”—an annual American loss of somewhere between three thousand and eight thousand women’s lives. Schur recommended that “Completely legalized abortion would probably be the best solution,” but acknowledged that “the real impediment to progress is public indifference.”11
But abortion made news only when gruesome deaths or notable criminal convictions supplied an occasion. In early 1956 Time magazine ran an extensive story on the four-month jail sentence meted out to a seventy-two-year-old Akron, Ohio, doctor who estimated that he had performed two to three hundred abortions every year since 1934, at a cost of two hundred dollars each. He had never experienced a fatality, and had never previously been arrested, but Time emphasized how his conduct had resulted in “5,500 babies deprived of life.”12
Modest reform suggestions occasionally appeared from within the legal community. One prominent scholar, Glanville Williams, gave several 1956 lectures at Columbia University that advocated therapeutic liberalization, and the following year his remarks appeared in book form, explicitly calling for the legalization of prequickening or previability abortions in cases where a woman faced a serious health threat. A modest law review essay similarly suggested that “an exception to preserve health, whether achieved by statutory reform or judicial interpretation, is clearly desirable,” but realistically concluded that “the status quo will remain undisturbed until either public opinion becomes aroused sufficiently to enforce abortion laws, or existing mores change enough to make legalized abortion a legislative feasibility.”13
In mid-1958 Calderone’s edited proceedings of the 1955 PPFA abortion conference were published, and the explicit contribution of Dr. Timanus, who surveyed his detailed and fatality-free records of the more than five thousand abortions he had performed over the years, drew news attention in Time magazine. Time stressed that the actual number of abortions in the United States was now “astronomical,” but the Calderone volume itself represented no clarion call for reform. Indeed, with the exception of Alan Guttmacher, the medical contributors to the book were a seemingly timid group, and the conclusory statement signed by the conference participants represented only the most modest and limited endorsement of liberalization.14
Despite its own timidity, the Calderone volume nonetheless occasioned book reviews that gave voice to nascent liberalization sentiments. A prominent commentary in Scientific American termed existing abortion laws “fanatically narrow and backward” and observed that “a frank admission of the dimensions of the problem might force remedial action which would provoke intense religious and social opposition.” Both Fowler Harper and Lee Buxton were among the volume’s other reviewers, and while Buxton did indeed volunteer that “an abortion of any kind is the taking of a life,” he nonetheless also offered a clear and optimistic endorsement of statutory reform: “The probability is that … legal modifications will occur in abortion laws throughout the country, very probably liberalizing genetic, socio-economic, and psychiatric indications, but this will never be done without the constant prodding of thoughtful and concerned individuals.”15
Soon after the Calderone book’s publication, one member of a standing committee of the American Civil Liberties Union’s board of directors brought up the subject of abortion law reform for the second time in two years. In December 1956 the committee had turned aside any consideration of endorsing liberalization efforts on the grounds that since no such efforts were known to be under way, nothing needed to be said. Now, in October 1958, ACLU board member and New York lawyer Dorothy Kenyon, who almost thirty years earlier had first suggested “nullification” as the means for eliminating anticontraception laws, raised the subject again. Kenyon told her ACLU colleagues that “there was an important individual right that should be given weight. A woman should have the right to determine whether or not she should bear a child.” Her fellow committee members were not persuaded, however, and with only Kenyon dissenting agreed that the issue “was not one to which the ACLU should properly devote its time.”16
Only a few weeks after Kenyon’s effort, Alan Guttmacher was back in the New York newspapers with a call for therapeutic abortion liberalization at a scholarly conference. Six years earlier Guttmacher had moved from Baltimore to become director of obstetrics and gynecology at Mount Sinai Hospital in New York, and the shift to New York had magnified his medical influence. As he had in Baltimore, he created a five-doctor committee whose unanimous approval was necessary before any therapeutic abortion could be performed there. The numbers involved were very modest—only 207 abortions took place at Mount Sinai between 1953 and 1960—but Guttmacher’s reputation as a distinctive liberal nonetheless raised hackles. “Many members of the staff,” a younger colleague wrote twenty years later, “felt that Dr. Guttmacher had breached normal medical-moral discipline by allowing abortions to be performed at the hospital.”17
Early in 1959 Guttmacher’s twin brother, Manfred, took him along to a meeting of the seemingly obscure but extremely influential American Law Institute (ALI), an organization of professionals from a number of fields whose major focus was the drafting and promulgation of a comprehensive set of statutes, including a Model Penal Code, for American states to consider for enactment. Guttmacher went along because that May 21 session at New York City’s Harvard Club would consider Columbia Law School professor Herbert Wechsler’s draft recommendation that the group endorse therapeutic abortion liberalization, so as to allow for an abortion if two doctors agreed that there was a “substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother,” if the fetus itself had a “grave physical or mental defect,” or if the pregnancy was the result of rape or incest. The proposal was approved by an “overwhelming” voice vote of the thirty or so men present, but Guttmacher was taken slightly aback when the elderly and famous federal appellate judge, Learned Hand, seated near him, muttered that the reform proposal was “a rotten law; it’s too damned conservative.” The New York Times ran an immediate news story heralding the ALI action, and in later years both Guttmacher and prominent antiabortion activists such as future federal appellate judge John T. Noonan, Jr., would agree that the ALI endorsement had been the first major stimulus toward significant liberalization.18
Another almost equally pivotal event that month was the seemingly unremarkable publication in the Stanford Law Review of a detailed survey of how more than two dozen California hospitals were actually interpreting and applying the state’s antiabortion statute that authorized exceptions only if a woman’s life was in danger. Perhaps unsurprisingly the two researchers found that in practice “the standards of the law are not being strictly complied with,” and that while the total numbers of therapeutic abortions being performed were modest indeed, there nonetheless was “a significant disparity between what the law commands” and what doctors really were doing. This explicit finding that some practitioners and institutions were already employing ALI-like therapeutic standards in the cases of some women patients thus raised the more-than-hypothetical possibility that doctors and hospitals could well be criminally vulnerable under the California statute for following what had already become accepted medical practices. While the two authors, Herbert Packer and Ralph Gampell, observed that “the deviation from the legal norm is not unwitting,” they also noted that legislatively “the means exist to take this problem entirely out of the realm of the criminal sanction and entrust its resolution to arrangements imposed by the responsible judgment of the medical profession.” Their most explicit recommendation, however, was that “the law ought to be brought into greater conformity with the practices of reputable members of the medical profession.” By putting at least some mainstream doctors on notice that they too, and not just dingy abortionists, could potentially be at risk under existing statutes, Packer and Gampell significantly expanded the potential universe of influential and self-interested liberalization supporters.19
In midsummer 1959 Alan Guttmacher published a book-length statement of his views that was excerpted in popular magazines such as Redbook and Reader’s Digest and that the New York Times again treated as a newsworthy event. Guttmacher’s Redbook article, which the Times highlighted, endorsed liberalization reforms “for general health, including the socio-economic environment, too many children,” and so forth, but sought to protect his backside by fervently asserting that “Lest it appear that I am advocating unrestricted legal abortion, let me hasten to say that I would vigorously oppose any such proposal.” The Times also picked up on Guttmacher’s Packer and Gampell-like admission that more than 90 percent of the therapeutic abortions that were performed at Mount Sinai technically “were illegal,” and supportively quoted San Francisco physician Dr. Glenn Craig, head of the leading professional specialty association, the American College of Obstetricians and Gynecologists (ACOG), as saying that such ALI-standard therapeutic abortions were “morally and medically correct” even though they were illegal. “It is impossible to change the law,” Craig added. “It must be left up to the enforcement officers. Our responsibility is for the health and welfare of our patients.”
In the book itself, titled Babies By Choice or By Chance, Guttmacher briefly lambasted the Connecticut anticontraception statute for making “the citizens of that state the largest mass criminal population in America” before moving on to a more extended argument in favor of abortion law reform, which he conceded “is not going to happen soon.” What the United States ideally needed, Guttmacher explained, was “a uniform abortion law” covering all states. Such a law would have to be “clear-cut” and “permissive but at the same time restrictive,” authorizing abortions where a pregnancy involved a “high likelihood of injury to the health of the mother,” a “strong probability” of a fetal defect, a pregnancy that was the result of rape, or “feeble-mindedness” in the mother or parental unfitness due to drink or drugs. Progress toward such liberalization could be made only “through an aroused citizenry,” and Guttmacher quoted a letter he previously had written to a convicted abortionist, explaining that if doctors and prosecutors actually abided by the true strictures of existing laws, legal change would come sooner than if therapeutic liberalization occurred privately and quietly: “the more precisely one sticks to these laws the more likely it is that the body politic will rise up against them and cause their modification.” Guttmacher again stressed, however, that “I am strongly opposed to modifying the law to permit abortion on demand. There must be important medical or sociological necessity” for each abortion. But Guttmacher seemed to hint that changes reaching well beyond his own recommendations could of course be envisioned. “How long will it take the reactionary state legislatures to adopt such conservative modifications of the archaic abortion statutes? By the time they do, the proposed modifications have a fair chance of being judged archaic.”20
Guttmacher’s writings, the Packer and Gampell study, and the ALI recommendation all had effects. A young and inexperienced Maryland state legislator, Joseph D. Tydings, wrote Guttmacher to say that he had seen one of his articles and wanted to learn more about therapeutic reform. “I plan to study it very seriously with the thought of introducing legislation into the Maryland House of Delegates.” Guttmacher replied that Tydings should review the Packer and Gampell article and volunteered that he would be happy to testify in favor if Tydings went ahead. “I admire your courage in attempting to modify the Abortion Law in Catholic Maryland,” Guttmacher added, and Tydings indeed did not introduce any such bill.21
Another new, young participant in the slowly burgeoning discussion was a twenty-nine-year-old Los Angeles County assistant district attorney, Zad Leavy, who had graduated from law school only the year before. During his early months in the DA’s office Leavy was assigned to handle a number of abortion prosecutions generated by a special six-member police detective squad that investigated only abortion cases. Leavy quickly learned “how much suffering was going on” within the world of illegal abortion and also soon realized, in dealing with uncooperative witnesses, that “women were very grateful to good abortionists.” That fall Leavy authored an article in the Los Angeles Bar Journal calling for therapeutic liberalization and reiterating the Packer and Gampell argument that “it is common knowledge among medical men as well as legal authorities that only a small percentage of therapeutic abortions performed today are legal.”
One supportive reader of Leavy’s essay, Santa Monica psychiatrist Jerome Kummer, who was working on an article advising doctors that the legal risks of performing therapeutic abortions were declining rapidly, called Leavy to ask whether he would be interested in coauthoring—one doctor, one lawyer—a paper for the upcoming annual meeting of the American Medical Association. Leavy agreed, and in June 1960 Kummer’s presentation of their joint work at the AMA session garnered newspaper headlines—“Law on Abortions Called Too Strict”—all across the country. Subsequently published in California Medicine, Kummer and Leavy’s essay called for the same liberalization measures advocated by the ALI, observed that without doubt “the primary goal” of existing antiabortion laws was “to prevent death or injury to the mother,” and asserted that “there is a rather direct derivation of attitudes concerning abortion from the prevailing attitudes toward sex in general.” They contended that the notion that some women suffered psychologically from grief or other ill effects in the wake of therapeutic abortions was “grossly exaggerated,” and estimated that “the weight of public opinion most probably favors a cautious relaxation of the present abortion laws.” “If the medical profession fails to assume the leadership in this campaign,” they concluded, “it will be only a matter of time before an informed citizenry will cry out and demand the necessary changes in law.”22
PPFA medical director Mary Calderone was also gradually expressing more interest in abortion, but in a major late 1959 paper she explicitly eschewed any call for legal change or liberalization and volunteered that “abortion is the taking of a life.” She also avoided any overstatement of the extent of the problem, pointing out that probably some “90 percent of all illegal abortions are presently being done by physicians” and noting that “in 1957 there were only 260 deaths in the whole country attributed to abortions of any kind.” Several months later PPFA counsel Morris Ernst prodded Calderone on abortion, telling her that “I have a hunch that it is about time we a got a well-reasoned opinion on the subject from some upper court,” but only at the end of 1960 did Calderone make a move, suggesting to Alan Guttmacher that they along with other prominent doctors should consider whether “the time may have come” for “the establishment of an Abortion Service.” Women with therapeutically persuasive situations could have their cases reviewed and approved before the procedure was performed at a clinic that might best be located in Maryland, where the unique language of the state law allowed somewhat more room for abortions on “health” grounds than anywhere else.23
Nothing came of Calderone’s suggestion, but liberalization exhortations continued to attract attention. A Ralph Gampell speech at a meeting of the American College of Surgeons drew widespread news coverage, and Newsweek magazine ran a three-page proreform story stating that the national death toll from illegal abortions was some five thousand women a year. It asserted that “most doctors strongly advocate reforms in the laws,” and termed Alan Guttmacher “one of the most outspoken crusaders.” Newsweek also noted Leavy and Kummer’s involvement, and indicated that in light of Packer and Gampell’s findings, “most doctors feel they should stretch the abortions laws still further.”24
A number of law reviews also published articles endorsing the ALI therapeutic reform proposal, but the Georgetown Law Journal published a two-part, 220-page attack on the burgeoning liberalization drive. Author Eugene Quay, in surveying the nineteenth-century history, emphasized how “none of the modern legislation in the United States and England can be traced to any political influence of the Catholic Church,” and alleged that “the present pressure is for freedom to have abortions for the convenience of the mother.” Hence, Quay said, “there is obvious need for a guardian or attorney to defend the interest—the right to life—of the child.” Reform proposals that would allow for abortions on the basis of a woman’s health, or a pregnancy resulting from rape, were especially undesirable, Quay suggested. “A mother who would sacrifice the life of her unborn child for her own health is lacking in something.” Instead, “it would … be in the interests of society to sacrifice such a mother rather than the child who might otherwise prove to be normal and decent and an asset.” Other disposable or despicable women facing an unwanted pregnancy, Quay argued, would turn to another option, for “many an errant female if caught will call herself a rape victim,” as “many false charges of rape are made.” In Quay’s version of reality, there was no need for a therapeutic rape provision whatsoever, for “there seems to be little likelihood of any pregnancy resulting from a rape by force or from any intercourse in which the woman’s consent was wholly refused throughout.”25
Nevertheless, additional voices for liberalization emerged early in 1961. The Christian Century, a prominent voice of liberal Protestantism, published a strongly worded editorial calling existing abortion laws “barbaric and cruel” and repeating Newsweek’s figure of some five thousand deaths per year. But the magazine stressed that its support was for reform, not repeal; “few doctors and few responsible people outside the medical profession would argue that all restraints should be lifted or that pregnancies should be interrupted because of some married mother’s whim or some unmarried mother’s shame or fear.” Six weeks later the board of the National Council of Churches, in a resolution endorsing birth control, also indicated support for abortion liberalization, but in language that conveyed the real message only if a reader appreciated the significance of the word “health”: “Protestant Christians are agreed in condemning abortion or any method which destroys human life except when the health or life of the mother is at stake.”26
The following month, at the initiative of the New Hampshire Medical Society, a bill legalizing the performance of a therapeutic abortion during the first twenty weeks of pregnancy if the mother’s life was endangered passed the New Hampshire house of representatives by a margin of 209 to 156 and then the New Hampshire state senate on a vote of 15 to 8. New Hampshire’s nineteenth-century antiabortion law, perhaps as a result of a printer’s error, contained no such exception, and state doctors who had encountered one particularly serious case pushed to bring the law into compliance with accepted medical practice. The Roman Catholic Bishop of Manchester had denounced the bill, but with the added support of the New Hampshire Council of Churches and the Manchester Ministerial Association, the medical society prevailed in both houses. Then, however, conservative Republican Governor Wesley Powell made good on a promise to veto the measure, and proponents’ efforts to get the two-thirds support necessary to override the governor’s action fell far short. This first legislative struggle over abortion anywhere in America in many years indicated apparent support for at least tepid liberalization, but the effort received almost no national news attention, although the Catholic weekly America did note the developments for the purpose of implicitly rebuking the New Hampshire Protestants: “If the churches do not guard morality in a democratic state, the determination of morality tends to go by default to the majority vote and the popular will”—apparently an ominous risk.27
On April 12, 1961, a newly elected member of the California Assembly, John T. Knox of Contra Costa County, introduced an ALI-style therapeutic reform bill in the state legislature. Knox had never forgotten a story he had seen several years earlier about a Colorado woman who had been unable to get an abortion for a pregnancy that was the result of a rape, and an attorney friend in state government who had seen the Packer and Gampell study had reinforced Knox’s interest in the issue. The rape story had “made a very deep impression on me,” Knox recalled twenty years later, and although no immediate action was taken on his measure, his initiative was nonetheless notable and unique.28
Soon after Knox’s move the Saturday Evening Post published a major, three-part series of articles on abortion by well-known journalist John Bartlow Martin. Two of the three pieces focused upon the medical horror stories of women who suffered death or serious injury as a result of illegal abortions, and repeated the estimate of perhaps five thousand fatalities nationwide each year. The final one, noting that “present abortion laws are neither obeyed nor enforced,” sounded a restrained call for reform and highlighted the involvement of Kummer, Leavy, and Guttmacher. “No one,” Martin added, “has proposed to repeal the abortion laws outright, though feminist movements assert the right of a woman to decide whether to continue a pregnancy.”29
One interested reader of Martin’s series, New York state senator and Public Health Committee chairman George R. Metcalf of Auburn, noticed Alan Guttmacher’s call for legal reforms and wrote Guttmacher to say that he would like to hear his specific recommendations. Guttmacher told Metcalf that the existing New York antiabortion law was “an utterly unworkable legal anachronism” and that he would be happy to meet and discuss the subject further. Eventually, Guttmacher put together a group of some nineteen interested professionals—including two or three Roman Catholic priests—who attended a working lunch with Metcalf at the New York Academy of Medicine on December 1. The proposal on the table was whether a liberalization bill that would simply add “and health” to New York’s sole existing exception allowing for abortions “to preserve the life” of the mother ought to be introduced in the legislature. The monsignors, however, forcefully indicated that the Roman Catholic hierarchy would oppose any such measure with all of their energies, and Guttmacher—and Metcalf—gave up their hopes for any legislative reform drive in New York. “The only thing that could be done,” Guttmacher wrote to his old friend, retired abortionist Tim Timanus, “would to be organize a society for the reform of the abortion laws,” but “I think it would be awfully tough to get any meaningful group together in our own country.” Abortion law change would be attained only sometime in the distant future. “It is a tough assignment and one which our children will have to fight.”30
By coincidence, however, the same day on which Guttmacher wrote Timanus, a thirty-three-year-old California woman, Pat Maginnis, wrote to Guttmacher to tell him about her newly formed Citizens’ Committee for Humane Abortion Laws. Brought up as one of seven children in a devoutly Roman Catholic and conflict-ridden family, Maginnis had had her first illegal abortion in Tijuana, Mexico, in the mid-1950s, and then had managed to abort each of two subsequent unwanted pregnancies by herself. She had read about Assemblyman Knox’s bill in the local San Jose newspaper, had made a stab at circulating a petition in favor of it, and in January 1962, along with a half-dozen friends, created CCHAL. Maginnis appreciated Guttmacher’s championing of reform, but clearly indicated that her hope was for repeal, not for individual therapeutic approval from some committee of doctors. She and other women, Maginnis told Guttmacher, did not like the idea of having “to appeal their case to a battery of people.”31
Abortion continued to draw increased public attention. Two convicted physician-abortionists—one styling himself as “Dr. X”—each published inherently reformist paperback memoirs, and a CBS television series, “The Defenders,” drew Roman Catholic ire by airing a segment on an abortionist entitled “The Benefactor.” The New York Times stated that the show “amounted to an appeal for revision of the law,” and reported that the network “overrode assorted objections and reservations of sponsors, affiliated stations and others” to broadcast it. A major New York City radio station soon followed with a repeated editorial announcement calling existing laws “out of date” and advocating reform, and both Time and Newsweek magazines published prominent and implicitly proreform stories. Time cited an increasing number of American women who were traveling to Japan for abortions to highlight what it called “a striking case of conflict between the mores of a people and their legal code.” It reiterated that “nearly 5,000 women die each year” from illegal abortions, and emphasized the reform proposals that had now been formally ratified by the ALI. Newsweek profiled a sixty-six-year-old Oklahoma family doctor and longtime abortion provider who had pled guilty to manslaughter and received a four-year prison sentence following a 1961 procedure that resulted in a woman’s death. W. J. Bryan Henrie, Newsweek emphasized, was a former city council member, founder of his small town’s public library, and 1960 PTA Father of the Year. His neighbors held a townwide thank-you and farewell party for Henrie before he left to begin his imprisonment.32
Crusty old Morris Ernst, now seventy-four years old, had significant time on his hands once primary responsibility for PPFA legal work shifted to his partner Harriet Pilpel following his battle with Loraine Campbell, and Ernst increasingly turned his remaining energies toward abortion, or at least toward crotchety letters insisting that nothing was holding up extensive liberalization except medical and legal cowardice. Ernst had contributed an introduction to “Dr. X’s” memoir, and in it he had insisted—just as he had previously in birth control cases—that “no statute may be constitutional if it calls for the impairment of the health of the people.” Not only was it true that “abortions are necessary for the health of the women of our land,” but also, Ernst insisted, “abortions are legal and we must await a tiny speck of social decency on the part of organized medicine and the legal profession” to enable everyone to appreciate it. What he really had in mind, he again told PPFA’s Mary Calderone, was “a liberalization of abortion law by judicial opinions,” so long as courageous doctors and lawyers were willing to undertake the necessary cases—and abortions. Ernst made the same point to Alan Guttmacher, telling him that One Package and other birth control precedents “will expedite the change on abortion whenever a few people feel strongly about the matter and are ready to stop Talmudic discussions.”
In July 1962 Ernst published an occasionally cranky statement of his views in a moderately obscure medical magazine. He characterized long-dead Anthony Comstock as a “proven psychopath” and attacked what he called the “defeatist concept of therapeutic abortion.” He reiterated his call to arms, telling physicians that “The health of our nation in this area of abortion awaits no more than some simple dignified and thoughtful leadership. Only men in the health discipline are fit to so lead our people.” One friend of Alan Guttmacher’s wrote him to be sure that Guttmacher, who had just retired from Mount Sinai to accept the challenge of becoming president and chief executive of PPFA, had seen the Ernst piece. On July 17 Guttmacher replied that he had, and that the issue of abortion reform “is certainly coming to a boil. I am quite certain that doctors all over the country will be made cognizant of the problem through all media in the next twelve months.” But Alan Guttmacher did not know just how prescient he was, or that the time frame would be more like twelve days, rather than twelve months.33
Sherri Chessen Finkbine was a twenty-nine-year-old pregnant mother of four when she first read a story about the link between thalidomide and fetal defects in her local newspaper, Phoenix’s Arizona Republic. A local television hostess on a “Romper Room” children’s show, Sherri over the past few months had used a considerable number of headache tablets that her husband Bob, a high school history teacher, had happened to bring back from a trip to England the previous summer. Thalidomide had never been approved for use in America, but it had been employed in Europe, and it soon was identified as a cause of fetal defects. The newspaper story made Finkbine wonder about those English capsules she had taken, and after seeing a second piece on thalidomide, she called her doctor and asked him to check on the pills she had used, Distaval. The following day, Friday, July 20, he called her back to say that they did indeed contain thalidomide and that as a result there was a very considerable chance that her pregnancy would result in a highly deformed child. The following day, Sherri’s thirtieth birthday, she and Bob visited her doctor, who strongly recommended that she undergo a therapeutic abortion. He showed the Finkbines pictures of thalidomide babies that had appeared in a recent medical journal, and for Sherri the photos removed whatever doubts she had had. The physician explained that he already had checked with the three-doctor committee at Good Samaritan Hospital, and that their approval of the procedure was assured. The Finkbines then and there wrote out a letter of request, and their physician projected that once the paperwork was complete, the procedure itself would be scheduled for Wednesday or Thursday.
On Sunday Sherri had the bright idea of calling the Republic’s managing editor, J. Edward Murray, a friend of the Finkbines, to thank him for how the Republic’s stories had alerted her and enabled the Finkbines to avert a potential personal tragedy. She reached Mrs. Murray instead, and during the conversation Sherri suggested that perhaps the Republic would want to do a more prominent story to alert other women who might be in her same situation. Later that same day Republic medical editor Julian DeVries called the Finkbines, and Monday morning the Republic’s front page featured a story headlined “Pill Causing Deformed Infants May Cost Woman Her Baby Here.” The piece described the Finkbines’ situation without identifying them, but the story drew considerable attention, and Tuesday afternoon Good Samaritan Hospital administrator Steven Morris canceled the scheduled abortion on the grounds that Maricopa County Attorney Charles N. Ronan had refused to voice his consent without approval from a court.
Late Wednesday, July 25, attorney Walter Cheifetz filed a brief declaratory judgment petition in Maricopa County Superior Court on behalf of the hospital, its administrator, and the Finkbines. The court suit, which named Arizona Attorney General Robert Pickrell and prosecutor Ronan as defendants, put the Finkbines’ names into the public record, and Thursday morning stories on their predicament ran in most newspapers in America. That afternoon the Finkbines reluctantly held a press conference, and Bob Finkbine explained their rationale for seeking a legal abortion. “There is a fifty-fifty chance our baby would be a basket case if it were allowed to be born. We feel very strongly about this and believe we are doing the right thing.” A clearly shaken Sherri added that “My wish is that God would step in and do this naturally. I honestly believe I would be giving birth to a living death.”34
While the doctors, who had been intending to support the abortion on mental health grounds, checked the high-strung Sherri into Good Samaritan under an assumed name to shield her from the mushrooming news coverage, attorney Cheifetz, deputy county attorney Felix Gordon, and a representative from the attorney general’s office appeared at a one-hour Friday hearing before Superior Court Judge Yale McFate. Gordon contended that the Finkbines’ argument was with the hospital, not county or state authorities, and despite Cheifetz’s claim to the contrary, Gordon assured McFate that Ronan’s office had not threatened Good Samaritan or its doctors with criminal prosecution if they went ahead with Finkbine’s scheduled procedure. McFate took the matter under advisement over the weekend, but on Monday he issued a simple four-page order dismissing the case on the grounds that the Finkbines and the hospital had failed to demonstrate any real controversy with county or state authorities.
The Finkbines, the hospital, and attorney Cheifetz briefly considered proceeding nonetheless, but the following day Bob Finkbine released a statement saying that “we have concluded to seek help in a more favorable legal climate.” The statement, concurred in by the hospital, added that “There have been repeated published suggestions of prosecution” and declared that “we and our physicians do not wish to undertake a solution that might be considered outside the framework of the law.” That same day the Finkbines privately applied for passports and that evening they both flew to Los Angeles, where on Wednesday Bob went to see the local Japanese consul to request visas for Japan. The consul told him that it would take from four to seven days to receive approval from Tokyo, and with Sherri desperately wanting to proceed as quickly as possible, they changed plans and booked a flight to Stockholm without having had any contact with any Swedes aside from the New York correspondent of the Expressen newspaper. That gentleman kindly arranged for the paper’s medical editor to meet them at the Stockholm airport, and a newspaper vice president provided them lodging in his home.
American reporters energetically followed the Finkbines’ travels, with stories appearing almost daily in all major U.S. newspapers. Sherri twice tried to disguise herself by donning sunglasses and a blond wig over her dark hair, and in one interview before they departed Los Angeles she told an American journalist that one of the most painful aspects of the experience was the scores of hostile letters that were already pouring in. “We don’t believe in abortions, really,” Sherri disclosed, “But the main thing is to do what is right for the baby.” “I don’t feel it morally right to bring a deformed child into the world.”35
On August 5 the Finkbines arrived in Stockholm to the warm welcome arranged by Expressen and also to news of a direct personal attack on Sherri by Vatican Radio, which had declared that each and every fetus is a full human person from the moment of conception and that, with regard to each and every abortion, “Homicide is never an act of goodness.” Sherri had her first appointment with a Swedish psychiatrist on August 7, and another a few days later, but since the Royal Medical Board, which had to authorize each abortion, met only once a week on Fridays, the Finkbines had to sit and wait until the board considered Sherri’s case on August 17. News reports indicated that 40 percent of requests were rejected, but when that Friday finally came, the three-man committee approved Sherri and she immediately checked in to Karolinska Hospital. The next day, in her thirteenth week of pregnancy and under a general anesthesia, the abortion was finally performed, and the hospital told reporters that the fetus had indeed been highly deformed. The doctors told Sherri it was “not a baby” but an “abnormal growth,” and while Sherri remained hospitalized for almost a week of recuperation, Bob told journalists that “we both feel extremely relieved.” Their long and traumatic journey had cost them some four thousand dollars, Bob estimated, and as they prepared to head home, Vatican Radio again denounced them and called Sherri’s decision “a crime.” “Crime is the only possible definition,” the Vatican pronounced, because “the victim was a human being.”36
Sherri Finkbine’s very public ordeal, and the extensive news coverage it received, altered the national consciousness concerning abortion far more profoundly than anything Alan Guttmacher or Morris Ernst could say or do. Finkbine’s medically tragic case, and her heavily publicized Arizona tribulations, represented “a perfect vehicle for challenging the status quo in the most narrow (and hence most persuasive) possible way,” an insightful scholar later wrote. An avowedly antichoice historian subsequently acknowledged that Finkbine was “the perfect suburban housewife and mother,” and that her story marked a fundamental shift from the prior journalistic consensus that abortion was a subject that newspapers covered largely within the context of crime news and police raids against death-dealing nonprofessionals.37
The Finkbines’ experience had effects both large and small. Karolinska Hospital in Stockholm found itself deluged for months to come with abortion requests from American women wealthy enough to envision a possible trip to Sweden, and a number of U.S. doctors queried their state medical associations to ask whether the threat of thalidomide-induced fetal defects was acceptable grounds for proceeding with an abortion under one or another state’s law. Legal counsel for the Texas Medical Association reminded doctors there that “saving the life of the mother” was the only proper basis for an abortion in Texas and that the statute’s “stringent and simple” command was “rigidly limited.” A Dallas newspaper noted that a Veteran’s Administration physician had told a laymen’s group at Dallas’s First Unitarian Church that the Texas law should be extensively liberalized, but some members of the Roman Catholic church’s American hierarchy echoed Vatican Radio by insisting that the Finkbines had grievously erred. Father John C. Knott, director of the National Catholic Welfare Conference’s Family Life Bureau, reiterated that “to deliberately abort is to deliberately kill” and minimized the danger that the Finkbines had faced by declaring that “most people you meet have some physical or psychological deformity or defect.” Knott added, in an odd sort of sarcasm, that “Since it seems relatively easy to secure physicians to act as a volunteer board for the elimination of embryonic life, it should not be too hard to secure a few more doctors (and qualified laymen, of course) to act as a committee for the elimination of deformed and defective adults.”38
In mid-September the Gallup Poll told respondents that “As you may have heard or read, an American woman recently had a legal abortion in Sweden after having taken the drug thalidomide, which has been linked to birth defects. Do you think this woman did the right thing or the wrong thing in having this abortion operation?” Fifty-two percent of all respondents answered that Finkbine had done the right thing, and 32 percent said the wrong thing. Sixteen percent had no opinion. Among Protestants the responses ran 56, 27, and 17, while among Roman Catholics the breakdown was 33, 49, and 18. Fifty-four percent of men said Finkbine had done the right thing, 30 percent the wrong thing; among women the two percentages were 50 and 33.39
The Dallas Unitarians were not the only small-scale evidence of the Gallup Poll’s notable majority. A woman from Lynbrook, New York, wrote to Morris Ernst from “out of the blue” to say that she and her husband along with three other couples, two Jewish and one Roman Catholic, had privately begun discussing “the need for liberalization” of the New York antiabortion statute but had had no success in persuading any local doctor to join them in some public effort, even though the physicians had indicated that privately they agreed. The group’s hope was “to promote new legislation,” but “we are at a loss as to the next step to take,” and asked for Ernst’s advice. Ernst simply passed her inquiry along to a doctor friend, and seemingly did not answer at all when the woman wrote again to repeat their request. “It is our hope that all of the people who feel the way we do can join forces and get some legislation as soon as possible.” Six weeks later Ernst himself gave a talk advocating abortion law nullification to a group of Westchester County doctors, but all he earned for his effort was an editorial attack in a local newspaper calling his argument “indefensible.”40
On December 17 and 18, 1962, a California Assembly committee held hearings in San Diego on Assemblyman Knox’s therapeutic reform bill. Zad Leavy, Jerry Kummer, and prominent physician Keith. P. Russell were among the first day’s affirmative witnesses, and all three men emphasized that the bill would simply codify existing medical practices as had been documented by the Packer and Gampell study. One witness, George McLain, the president of the National League of Senior Citizens, volunteered his belief that Knox’s bill did not go far enough, and that “Regardless of the circumstances, I believe the woman should have the right to determine whether or not she wishes to be a mother.” Father Timothy E. O’Brien, appearing on behalf of the California Conference of Catholic Hospitals, opposed the measure on the grounds that “the unborn child is a human being and has the basic rights attributable to any other human being,” and San Jose’s Pat Maginnis submitted some 350 petition signatures backing liberalization that had been gathered by her small Citizens’ Committee for Humane Abortion Laws. “Women do challenge the existing law and always have,” Maginnis told the committee. “Not as an organized body of people, but rather as a chaotic scattering of individuals.” Maginnis later estimated that the hearing had drawn an audience of only about six people, and the sessions provided no apparent stimulus for reform proponents. Early in 1963 Maginnis’s small group recruited a willing Alan Guttmacher as an endorser, and when Assemblyman Knox, troubled by friends’ opposition to his measure, declined to reintroduce it in the new legislative session, the bill was put forward instead by thirty-year-old Beverly Hills freshman representative Anthony C. Beilenson.41
National attention continued to be drawn to abortion by a number of prominent magazine and wire service stories. Sherri Finkbine recounted her ordeal for Redbook and volunteered that “I hope it has advanced the day when our nation … will take a fresh, unprejudiced look at its abortion procedures.” United Press International quoted well-known anthropologist Margaret Mead as saying that abortion laws “should be changed” and indeed eliminated. “We should not prescribe the conditions under which abortion is permissible.” The Yale Daily News endorsed liberalization in an editorial that Guttmacher praised as “courageous,” and hardly a week later the Columbia Spectator, picking up on an article in the university alumni magazine, did the same. The magazine piece, by thirty-eight-year-old Columbia Presbyterian gynecologist Robert E. Hall, cited the Finkbine case and noted that no present U.S. statutes allowed for abortions on fetal deformity grounds. Hall observed that doctors “in general … are a timorous group” and suggestively added that “doctors should not be asked to determine which women qualify for abortions.”
Hall’s modest article deeply agitated the excitable Morris Ernst, who badgered Alan Guttmacher into arranging a luncheon where Ernst could berate Hall with his hobbyhorse notion that increased courage on the part of physicians was the only thing standing in the way of widespread liberalization. Hall politely insisted that reformers needed to focus on broadening state laws, and in private Ernst was having no better success in arguing with Harriet Pilpel over what sort of advice their law firm should give PPFA with regard to its stance toward abortion. Ernst unavailingly lobbied Pilpel toward a more forceful stance, insisting that “I want to see an immediate revolution in thinking by doctors and others.” Some longtime PPFAers, such as former president Loraine Campbell, worried that Alan Guttmacher already was too outspoken on the subject for the organization’s own good, but Guttmacher continued to have very modest expectations of potential progress, advising one doctor who queried him on behalf of the American Humanist Association that legislative change in any state having a significant Roman Catholic population “is a virtual impossibility at least for the next several decades.” Just as he had told Tim Timanus a year earlier, Guttmacher again confessed that “I am afraid the fight will have to be won by our children.”42
In mid-May of 1963 the Unitarian Universalist Association endorsed liberalization in a resolution that at least implicitly bridged much of the distance between reform and repeal. Acceptable grounds for an abortion, the Unitarians said, included a risk of “grave impairment” to a woman’s physical or mental health, a serious fetal defect, a pregnancy that had resulted from rape or incest, or “some compelling reason, physical, psychological, mental, spiritual or economic.” The following week a low-visibility legislative hearing took place in Sacramento on Beilenson’s ALI-style reform bill, and while previous indications had been that the committee might well be prepared to report the measure favorably, a heavy flood of Roman Catholic opposition mail significantly altered the situation. One opposition witness, former Boston College Law School dean William J. Kenealy, who fifteen years earlier in Massachusetts had denounced birth control as “intrinsically evil,” emphasized his opposition to all abortions, even when a woman’s life was at stake: “reason supplies no justification for killing the child to save its mother.” One leading affirmative witness, Dr. Edmund W. “Ned” Overstreet, privately stressed to Beilenson that his modest bill “would have if anything an infinitesimal effect” on the number of illegal abortions taking place in California, but even its prospects for passage were clearly negligible. Pat Maginnis rued the low level of activity on behalf of liberalization, particularly by women, and told Morris Ernst that “the men have given us the greatest support.”43
Alan Guttmacher continued to hope that there might be some means of action on the East Coast, and on at least two occasions in the summer and early fall of 1963 he spoke with Harriet Pilpel about an ageing doctor whom a friend of Pilpel’s had recommended to her as a willing and interested abortion test case participant. Guttmacher suggested in a state medical journal essay that there was “growing sentiment” in the country for altering the “anachronistic and puritanically punitive” existing laws, and candidly asked, “Would it not be helpful if a broadly based committee were appointed to investigate the problem and to render a report which will include recommendations?” Nothing developed on either of these two fronts, and Guttmacher noted in another essay that while full repeal was a good goal, he did not now advocate it because such a position would offend too many people. “Social progress should be made by evolution, not revolution,” he averred.44
Various law journal commentators continued to voice support for reform, and other occasional figures, such as a Unitarian minister in Seattle, Peter S. Raible, publicly indicated a preference for full repeal over ALI-style therapeutic reform. But when the California activists arranged a major roundtable discussion, longtime reformer Jerry Kummer brushed aside a suggestion that there might be a woman’s right to abortion as outside their purview. Kummer willingly conceded that a reform bill such as Beilenson’s would legalize only 5 percent of the existing demand for abortions, but there was clear agreement that such a measure was a necessary first step, with one lawyer cavalierly declaring “Let us worry about the 95 percent later.”45
But a radically different analysis was being suggested by another Californian, Garrett Hardin, a forty-eight-year-old University of California at Santa Barbara biologist. Hardin had opposed abortion until he read and pondered that 1959 Scientific American review of the Calderone book, but by the spring of 1963 he had become convinced that complete repeal, not therapeutic reform, was the proper course. Even more importantly, he argued in an October lecture to a large audience at UCSB, reform could very well significantly postpone, rather than hasten, complete repeal, for “a trifling improvement of this sort might well delay for generations the much larger step.” And Hardin articulated the basis for pursuing that larger step in a way that no one, even the obscure Stella Browne, had ever yet done: “any woman, at any time, should be able to procure a legal abortion for herself without even giving a reason. The fact that she wants it should be reason enough.” No committee approval or institutional permission should ever be necessary. “The right to abortion should be hers, and hers alone.”
Hardin’s feminist declaration was, in Alan Guttmacher’s typology, a call for revolution, not evolution. And Hardin had an equally succinct and prescient analysis of what the chances were that that goal would be attained: “Whether our anti-abortion laws will be repealed depends, I think, on one thing: whether women will band together to repeal them. Don’t expect men to do much; men don’t get pregnant.… It is women who must lead the fight. When the majority of women come out against the anti-abortion laws, the legal structure will topple like a house of cards.”46
Hardin’s speech created no news, but in its own quiet way it represented just as significant a milestone of fundamental change as had Sherri Finkbine’s heavily publicized ordeal fourteen months earlier. Some weeks later Hardin sent a copy of his text to Alan Guttmacher, and Guttmacher warmly thanked him for such a “unique and fascinating” argument. “I too feel that in the ultimate the woman has the right to make the decision whether she should or should not remain pregnant,” Guttmacher disclosed, but he repeated his belief that legal progress would be evolutionary, not revolutionary. “I think we can change the abortion statutes inch by inch and foot by foot, but not a mile at a time. Therefore, I believe in liberalizing the law—not amputating it.” Guttmacher added that he agreed with Hardin’s biological belief that “the fertilized egg is no more sacred” than an unfertilized egg, “but again I feel we would be voted down by the body politic.”
Hardin answered Guttmacher’s reactions by explaining that “I am of two opinions on the feasibility of a radical change in the laws.” On the one hand, he realistically believed that Guttmacher’s argument for gradualism would prove correct, but on the other, it nonetheless was the case that “what we say influences the truth.” Specifically with regard to abortion, “a radical shift in opinion on this matter may be in the offing,” and “the 100 years I believe you have spoken of, may in fact turn out to be 10.” Hardin acknowledged that Guttmacher’s role as president of PPFA might limit what Guttmacher could say, but Hardin had the advantage of being simply “a completely independent maverick.” “I want to continue assuming an extreme position, using my words as an irritant and probe,” and an abortion speech already scheduled for April in Berkeley would be his next opportunity.47
The early months of 1964 offered several reflections of ongoing change. Harriet Pilpel and Guttmacher joined two antiabortion speakers at a March symposium on abortion at Columbia Presbyterian Medical Center, and Pilpel’s remarks reflected her increasing acceptance of Morris Ernst’s perspective. “It is because the doctors have not until now taken a forthright position,” Pilpel contended, “that so little progress has been made in this field.… As soon as you as a group are ready to say ‘we believe … that this woman should have an abortion,’” that her well-being “‘is threatened by this pregnancy,’ then many of us lawyers believe you have a legal right to perform an abortion.” Doctors simply had to “give the courts and the judges … the facts of medical life,” Pilpel told the physicians. “If you do this courageously, and as a group and with determination, what you say those laws mean has got to become what they do mean.” “Gentlemen, it is up to you,” Pilpel concluded. “There is no one else who is competent to do that job.”
Guttmacher straightforwardly told Pilpel that she—and Ernst—were wrong. “I think it is the extreme cases which are going to change the law,” and “I think it will be swifter even to get the legislators to change the law than to have us doctors do it.” Guttmacher subsequently expressed regret to one friend that as yet there was “no organization of any stature that seeks to soften the abortion laws,” but four weeks later that too began to change in the wake of a White Plains abortion symposium sponsored by the Westchester Ethical Society at which both Pilpel and Robert E. Hall spoke. Pilpel repeated her Ernst-like position, insisting that “abortion statutes will be interpreted to mean what the doctors say they mean” and declaring that she found it “hard to believe” that any court would ever rule against a doctor who said he had done an abortion for reasons of maternal health. Bob Hall on the contrary voiced a Guttmacher-like argument for legislative liberalization by means of an ALI-style therapeutic reform bill, and several audience members, including Sylvia Bloom and her husband Daniel, a dentist, began to talk about the desirability of actually setting up an organization to advocate abortion law reform.48
In late April Garrett Hardin gave a revised version of his 1963 Santa Barbara lecture, now titled “Abortion and Human Dignity,” to a sizable audience at the University of California in Berkeley. He reiterated that “any woman, at any time, should be able to procure a legal abortion without even giving a reason,” and that such a practice—what he memorably called “a policy of abortion on demand”—was “the only morally defensible arrangement.” The “underlying justification for all birth control practices,” Hardin emphasized, was simple and undeniable: “to free women from a now needless form of slavery, to make a woman the master of her own body. The emancipation of women is not complete until women are free to avoid the pregnancies they do not want.”49
Once again Hardin had articulated the core of the issue more powerfully than anyone before him, but also once again no outside attention immediately focused on his remarks. Alan Guttmacher, speaking in his old stomping grounds of Baltimore, Maryland, confessed to an academic audience that he recently had had to refer a pregnant rape victim to an illegal abortionist after New York’s Mount Sinai Hospital had refused her and she lacked the money to fly to the Japanese doctor to whom Guttmacher referred most women who asked him for help. Guttmacher added that he had repeatedly been surprised to discover how many of his own prominent doctor friends very quietly performed abortions, but when one audience member asked if Guttmacher’s remarks meant that PPFA might soon endorse abortion liberalization, Guttmacher seemed startled. He confessed with more than a little embarrassment that “I have not had the fortitude to even present this to them” and admitted that “I think I would have a tough time in getting them to take a stand.” Any open support for legal change, he said, “is going to take a long time.”50
In private Guttmacher mused to forty-five-year-old journalist Larry Lader, who a decade earlier had authored a Sanger biography and was now starting an abortion book, that the fundamental question was not whether he or any other single doctor was willing to undertake the sort of legal test that Ernst and Pilpel had in mind, but whether he or any other doctor could find a hospital that would allow them to carry out such an abortion using its facilities. A law professor friend told Ernst that he was “a complete pessimist” concerning Ernst’s notion and that there appeared to be “little prospect that anything can be done,” but Lader was just as impressed when he read Garrett Hardin’s argument as Guttmacher had been earlier. Seattle minister Peter Raible, who had delivered the prorepeal sermon six months earlier, told Lader that there were no reform efforts underway in Washington, and said he shared “Dr. Guttmacher’s pessimistic view as to the possibility of getting new statutes” rather than simply having to hope for some liberalizing interpretations of existing laws.51
As Lader began to survey the small national band of liberalization advocates, he told Pilpel that he agreed with her and Ernst’s view that “the whole situation needs only a few strong test cases” and some willing doctors. Pilpel herself, at a summer ACLU meeting, posed in rhetorical form a question similar to what Dorothy Kenyon had asked the civil liberties group six years earlier: “Does it not unconstitutionally deny a woman life, liberty and the pursuit of happiness, for example, if despite her wishes and the opinions of concurring doctors she is forced to bear a child she doesn’t want?” That formulation fell short of what Garrett Hardin was articulating, but posing it in constitutional terms reached significantly beyond ALI-type therapeutic reform proposals. Anthony Beilenson’s California reform bill, which Beilenson acknowledged would legalize only some 2 to 5 percent of illegal abortions, was debated at a mid-July legislative hearing, and at another in September, but no committee endorsement of it was forthcoming.
Connecticut’s Lee Buxton told Lader that the issue “is a terribly complex subject for which I doubt if there is really any solution.” Existing laws created “an incredible amount of hypocrisy,” but “if there weren’t any checks of abortion practices … it might be even worse.” An extensive survey of abortion in Texas by the Houston Chronicle estimated a statewide total of perhaps eighteen thousand abortions a year—and at least twenty-three deaths in 1963—and found an increasing number of doctors backing liberalization. The authors of a competent and newly published study of illegal abortion repeated the annual national death figure of approximately five thousand and offered a distinctly pessimistic portrait of any prospects for change. “One could hardly imagine a New York State senator of any faith (or no faith) actually introducing a bill on the subject at the present time,” they prophesied, but by mid-September the Westchester group that had invited Bob Hall and Harriet Pilpel to discuss abortion reform back in the spring were well on their way to creating an organization to encourage just that.52
Calling themselves the Committee for a Humane Abortion Law, Sylvia and Dan Bloom, along with their fellow Westchester Ethical Culture friend Fred Dusenbury, believed that there was a “great” need for such an organization “and that some degree of success is possible.” They asked Alan Guttmacher and other notables to serve on their advisory board, and explained that they believed “There should be no undue restriction against physicians to recommend and implement an abortion if, in their judgment, it is indicated for the health and well-being of the woman” or if there was a “serious risk” of a fetal defect. Guttmacher, Bob Hall and others responded favorably, and on October 27 the group had its first formal meeting and named Dr. Hall as its presiding officer on the grounds that “the future of the organization can best be served by a physician in the role of chairman.”53
The new group made its public debut in late November when both Bob Hall and Harriet Pilpel testified about abortion and birth control respectively before the New York State Commission on Revision of the Penal Law. Pilpel, offering an optimistic reference to the briefs that she, Fowler Harper, and the ACLU were about to file with the Supreme Court in Griswold, told the group that “recognition in the law of the fundamental right of privacy is developing in the direction of acknowledgment that there is a basic constitutional right for a married couple to decide … how many children are appropriate.” Two weeks after that hearing the Committee on Public Health of the New York Academy of Medicine revised earlier endorsements of therapeutic abortion reform and issued a resolution backing the ALI-style recommendations with regard to physical and mental maternal health and fetal defects. Both the New York Times and at least one national news magazine publicized the action, but none of the leading New York reformers had any expectation that legislative progress would follow. The Westchester group had resolved to change its name to the more succinct Association for Humane Abortion (AHA), and by early 1965, thanks to one moderately wealthy New York City member, Ruth Proskauer Smith, who had found a midtown office and agreed to serve as executive secretary, America’s first notably active abortion reform organization was about to get officially underway.54
In part through his new role as president of AHA, and in part because of his own independent research work, Bob Hall increasingly began to join, and sometimes replace, the much-older PPFA president Alan Guttmacher as a primary public advocate of abortion liberalization. In late January, just as AHA prepared for its first public function, the New York papers devoted extensive attention to the results of a survey of New York state obstetricians that Hall had carried out in response to a question at the Penal Commission hearing as to what evidence was there that reform advocates had the backing of New York doctors. Hall’s poll of twelve hundred obstetricians showed that some 87 percent supported ALI-style therapeutic liberalization, and Hall announced the results to reporters while at the same time stressing that “We are not trying to legalize abortion. We just want to get a change so that we can protect the health, as well as the life, of the mother and the developing fetus.”55
Hall and AHA clearly were articulating a far more modest agenda for change than what Garrett Hardin had envisioned, but his survey announcement generated a proreform editorial in the New York Times, perhaps the first significant newspaper endorsement of abortion liberalization in the entire twentieth century. “The present barbarous law ought to be revised” on both health and fetal defect grounds, the Times said, but the editorial drew a quick rebuttal from a Fordham Law School professor, Robert M. Byrn, who asserted that the existing antiabortion law had a symbolic as well as practical importance. “The law deters more by virtue of the moral climate which it absorbs and preserves than by the punishment which it enacts and imposes.” And with particular regard to deformities, “if the law were to devalue fetal life for one purpose, a significant segment of public moral opinion would devalue it for many other purposes.”
AHA’s official launching was marked by a public meeting that both Alan Guttmacher and Harriet Pilpel addressed, with Pilpel directly raising the possibility of a court case: “The Fourteenth Amendment … should be made to apply in connection with seeking an abortion … if test cases were brought, we would win.” Journalist Lader, ethicist Joseph Fletcher, and additional high-status doctors such as Louis M. Hellman and Carl Goldmark, Jr., joined Hall, Guttmacher, and Pilpel on AHA’s board, and Lader told California’s Pat Maginnis that it was his hope that AHA’s founding would lead to the creation of “one national group” advocating liberalization. Lader realized that Maginnis, like Garrett Hardin, envisioned change reaching well beyond therapeutic exceptions, but when even a publication like The Nation was featuring a prominent article calling for case-by-case court authorization of each and every abortion, reformers’ hopes indeed remained modest. A newly elected black member of the New York State Assembly, Percy E. Sutton, along with Manhattan state senator Manfred Ohrenstein, had enlisted Alan Guttmacher’s help in fashioning a liberalization bill that fell well short of even ALI standards, and the measure, with no prospects for even committee consideration, drew almost no public attention. In California Anthony Beilenson reintroduced his reform measure in the new session of the legislature, but his chief aide, Alan Charles, told Lader that the explicit opposition of the hierarchy of the Roman Catholic Church tempered any hopes for success. “We are optimistic about its eventual acceptance, but are realistic enough to know it will be a slow and tedious process of educating the public and the Legislature.” Charles said that the California reformers, like Pilpel, had considered the possibility of test cases, and while the state courts seemed “sympathetic,” they nonetheless did “not seem willing … to go much beyond ad hoc reversals of convictions” of reputable M.D.s who had been arrested for performing abortions and reach the “more fundamental constitutional issues.” “Unless a very positive constitutional case can be made out,” Charles explained, “I doubt that test cases will ever be of any lasting good.”56
A low-visibility statutory reform effort was also being made in New Mexico, where a retired public relations executive who believed that “every woman has the right to defend herself against abnormal mental and physical anguish” had persuaded a state representative to introduce a therapeutic liberalization bill that twice was killed in committee. Another journalistic inquiry into abortion availability in the neighboring state of Texas concluded that “It’s easy to find an abortionist in Dallas” and quoted a retired practitioner as estimating there were about twelve non-M.D. abortionists in town, none of whose services she would recommend. The city had recorded only one abortion death in 1964, and the word was that several competent doctors also quietly performed a few abortions.
A much more important journalistic examination of the subject was a CBS television documentary, “Abortion and the Law,” that was broadcast nationally on April 5, 1965. The show included an interview with the retired Tim Timanus and also referred to another “relatively well-known” physician-provider who was still active in Pennsylvania. A New York psychiatrist, Dr. Robert Laidlaw, voiced support for repeal rather than reform, saying that “it should be a part of the Bill of Rights that a woman can decide for herself whether she will or will not continue an existing pregnancy.” Alan Guttmacher concurred to some extent, agreeing that “Ideally, a woman should choose to have a baby. If she does not want one, I think that her pregnancy should be terminated safely. This is what the ideal is, but it is not very practical for America today. We have to move forward in stages, liberalizing our laws a little each generation.” Roman Catholic legal scholars Robert F. Drinan and Walter Trinkhaus spoke against abortion on behalf of fetuses, and Tony Beilenson forthrightly acknowledged that his “deliberately restrictive and conservative” reform bill would have “absolutely no effect on the great majority of abortions” now being performed illegally. The show indicated that there was “little hope” for legislative liberalization any time in the near future, but the program represented at least an implicit recommendation of reform, and two days later the New York Times cited the broadcast in again editorializing about how existing antiabortion statutes represented “an example of man’s inhumanity to man—or, more directly, to woman.” “Civilized compassion,” the Times said, “demands a liberalization of abortion law.”57
In late April, just as AHA was changing its name to “ASA”—the Association for the Study of Abortion—journalist Larry Lader had a prominent article on “The Scandal of Abortion Laws” in the New York Times Magazine. “Until a few years ago,” Lader observed, “prospects for changing the abortion laws seemed hopeless,” but now, he optimistically asserted, there was “a national chorus calling for reforms.” Legislative change, however, “will be extremely difficult to achieve,” and thus, Lader indicated, quoting Harriet Pilpel, prospects in the courts would undeniably be brighter. In private Pilpel and a junior associate had already suggested to the New York Civil Liberties Union that the existing antiabortion law “deprives women of the liberty to plan their families in violation of the Due Process clause of the Fourteenth Amendment” and that a bill that would leave the decision to a woman and her doctor up through the first twenty-six weeks of pregnancy should be considered. A lawyer friend of Lader’s since college, Cyril C. Means, Jr., had also begun to take an active interest in the constitutional questions, and once Means concluded that “there is not the chance of a snowball in Hell” that any reform bill would win passage in the New York legislature, he quickly agreed with Lader that “a court test is really the only hope.”58
By May 1965 an important new factor had begun to enter the abortion picture, a factor just as influential as Sherri Finkbine’s experience three years earlier. The new element was rubella, or German measles, and while most Americans who had contracted the disease during a recent epidemic had suffered no serious ill effects, any woman who caught it during the early stages of a pregnancy ran about a 50 percent risk that she would deliver a seriously damaged fetus. In mid-May the Los Angeles Times had publicized the fact that several local hospitals were readily performing abortions for such women in clear violation of California law, but the district attorney’s office indicated that no action would be taken. Life magazine devoted a very prominent story to the problem in early June, and it quickly became clear that the tragedy of rubella pregnancies was further widening the already-explicit gap between actual medical practice and literal statutory rules. Many of the rubella abortions took place under the rubric of a life-threatening “mental health” crisis brought on by a woman’s great psychological fear of giving birth to a severely deformed infant, and that formulation in turn placed significant pressure on psychiatrists to certify the existence of suicidal tendencies in women whose only desire was a powerful wish to be rid of a potentially disastrous pregnancy. Two California doctors were already tracing the “marked lack of consistency and uniformity” exhibited by psychiatrists who were asked to gauge the impact of an unwanted pregnancy, with a range running “from those who essentially never recommend therapeutic abortion to those who seem always to do so.” In both rubella and nonrubella cases, they concluded, “psychiatrists seem to be forced into the position of making decisions which are basically nonscientific.”59
In the closing days of the 1965 California legislative session Anthony Beilenson had agreed to a significant watering down of his reform bill in an unsuccessful effort to bring it to a floor vote, and in the wake of that perceived setback the California reformers were forced to turn their thoughts to trying again in 1967. Pat Maginnis had been away from California for significant parts of 1963 and 1964, but upon her return she reactivated a small Society for Humane Abortion (SHA) and began distributing copies of Garrett Hardin’s talks to a modest but nonetheless significant network of readers. Hardin’s analysis had had a major impact upon Maginnis and her two principal collaborators, Robert N. Bick and Rowena Gurner, and Bick recounted their shift to one reporter: “We started out much less radically, looking for a change in [the] laws.… We say now that a woman’s body is her own and she has a right to it.”60
Widespread newspaper and news magazine coverage of the abortion choices posed by rubella resulted in a growing public awareness of the issue, and within one three-month period in the late summer and early fall of 1965, The Atlantic, Time, Redbook, and Look all published prominent stories on abortion. Fordham’s Professor Byrn was only one of a number of Roman Catholic writers who responded that all pregnancies, even those involving rubella or resulting from rape, represent “innocent human life.” The fundamental issue, he declared, “is to bring the public to a realization of the fact that pre-natal life is innocent human life.” Robert F. Drinan agreed, and warned that since June of 1965 repeal proponents had gained a powerful new weapon: “advocates of the abolition of anti-abortion laws will no doubt urge, as one of the principal arguments, the right to marital privacy as that right is explained in the Griswold decision.”61
In late 1965 New York County—Manhattan—Medical Society president Dr. Carl Goldmark, Jr., an ASA board member, drew press attention when he explicitly declared that abortion law repeal would be preferable to therapeutic liberalization, but he stressed that legal approval for rubella abortions was doctors’ most pressing priority. New York City’s Women’s Medical Association quickly followed with a call for legal change, but when the American Medical Association’s Committee on Human Reproduction—including Lee Buxton and Mary Calderone—recommended at a December meeting that the AMA’s House of Delegates endorse ALI-style therapeutic reform, the recommendation was placed on hold rather than approved. Several leading newspapers responded editorially to the AMA action, with the New York Times again voicing support for ALI-like legislation and asserting that “the consensus is that nearly 10,000 women die each year.” Proreform articles continued to appear in prominent medical and legal journals, and in more and more states the beginnings of proreform legislative efforts started to emerge. In Texas the president of the state Association of Obstetricians and Gynecologists, Dr. Hugh W. Savage of Fort Worth, began to lobby officers of the Texas Medical Association on behalf of a reform resolution that would highlight how the existing Texas antiabortion statute “is in conflict with present medical practice in many reputable hospitals,” and one Oregon legislator started to ponder a similar move there.62
Public opinion polling also reflected the growing trend. The Gallup organization, in the first abortion question employed since the immediate aftermath of the Finkbine story, asked respondents in January 1966, “Do you think abortion operations should or should not be legal in the following cases?” and offered three prototypes: “where the health of the mother is in danger,” 77 percent said legal and only 16 percent not legal; “where the child may be born deformed,” the tally showed 54 percent legal and 32 percent not legal; and “where the family does not have enough money to support another child,” only 18 percent endorsed abortion and 72 percent opposed it.
The Association for the Study of Abortion (ASA), which was struggling to raise enough money to meet basic operating expenses, nonetheless funded a study by sociologist Alice S. Rossi of results from a December 1965 National Opinion Research Center poll that included a six-item question similar to Gallup’s. “Please tell me whether or not you think it should be possible for a pregnant woman to obtain a legal abortion if,” respondents were asked, (1) “the woman’s own health is seriously endangered by the pregnancy”—71 percent yes, 26 percent no—(2) “she became pregnant as a result of rape”—56 percent yes, 38 percent no—(3) “there is a strong chance of serious defect in the baby”—55 percent yes, 41 percent no.
For those three grounds, clear majorities of the American people supported therapeutic reform. But for the three other reasons that the NORC question presented, the results were, as with Gallup’s question about financial stringency, dramatically different: if “the family has a very low income and cannot afford any more children,” only 21 percent yes and 77 percent no; if “she is not married and does not want to marry the man,” 18 percent yes and 80 percent no; if “she is married and does not want any more children,” only 15 percent yes and 83 percent no.
To reporters, Rossi and ASA emphasized the 71 percent health figure as showing what a heavy majority backed legal reform. Even 64 percent of Roman Catholic men and 58 percent of Roman Catholic women, they added, supported the availability of legal abortion when a woman’s health was in danger. But the wide gap between those numbers and the ones responding to the latter items powerfully highlighted how greatly different were the political prospects for ALI-type reform as opposed to more far-reaching repeal. The Catholic weekly America, in an unhappy editorial entitled “Growing Consensus on Abortion,” ruefully observed that “if three-quarters of the American people seriously want broader grounds for abortion written into the law, their wishes will eventually prevail.”63
Increasing concern within the national Roman Catholic hierarchy over the spread of proreform sentiments led the National Catholic Welfare Conference to issue a well-written sixty-page pamphlet critiquing the idea of liberalization and arguing that even existing statutes allowing for abortions in life-threatening cases represented “substantial concessions and compromises” that should not be expanded. Conservative columnist William F. Buckley, Jr., warned readers of his National Review that “there is great pressure to ease the abortion laws,” and a worried Catholic lawyer in Los Angeles warned that “almost overnight abortion has become the subject of national interest and concern.” But press attention that was at least implicitly supportive of liberalization continued to grow, with both the Wall Street Journal and the Atlanta Constitution devoting front-page stories to the rubella issue and the solidly Republican Chicago Tribune reporting that “the number of fatalities is increasing” and “the national debate over abortion laws is getting louder.”
Pat Maginnis’s SHA held a day-long public conference on abortion laws in San Francisco early in 1966, and one of Maginnis’s principal colleagues, Lana Clarke Phelan, termed existing statutes “sexual discrimination laws” that impose “slavery in its cruelest sense” upon women. She termed modest reform measures like Beilenson’s “a lie and a cruel farce” and with implicit reference to Griswold decried the “political interference in the realm of marital privacy and denial of constitutional rights” that any restrictive statute represented. Another conference participant, however, Northern California Civil Liberties Union attorney Marshall Krause, firmly told Phelan that she and those who agreed with her were looking in the wrong direction. “Those people who attempt to say that there is a constitutional right to have an abortion are stretching the Constitution beyond bounds which it has ever gone and ever will go for a long time.” Griswold’s voiding of the Connecticut anticontraception statute, he contended, would not extend to abortion because “you have a greater legislative interest in protecting whatever it is that is protected by anti-abortion statutes … You would have a difficult time saying that a court should come in and protect this as a right of privacy. So, as far as a prediction, and I would hope to be wrong, I don’t think that the problem of harsh abortion laws is going to be solved by the United States Supreme Court’s ruling them unconstitutional. This is an area which the courts will leave to the legislatures, so the primary pressure and effort should be on legislative changes.”
Maginnis quickly emphasized that she disagreed with Krause on “the possibility of creating a constitutional case,” but Krause insisted that “the energy, the devotion of people interested in this cause must be toward education of the public.” SHA’s ensuing newsletter nonetheless asserted that Griswold “has done much to stimulate questions about abortion as a human and civil liberty” and reiterated what it termed “each woman’s right to govern her own body in matters of reproduction.” It added that “the Society is seeking lawyers willing to donate time to examine the constitutionality of the California Penal Code statutes on abortion, and, possibly, prepare a test case and carry it through, if necessary, to the highest court.”64
Most public activism on abortion, however, remained firmly within a legislative context and reflected largely a reform orientation. In early March 1966 the New York State Assembly Public Health Committee held its first hearing on the ALI-style bill that Percy Sutton had introduced a year earlier, but several of the ostensibly supportive witnesses, particularly Harriet Pilpel, devoted their testimony to detailing why reform measures were an inadequate and undesirable response to the abortion issue. Speaking on behalf of the New York Civil Liberties Union, Pilpel led off the hearing by saying that the CLU did not believe the bill “will accomplish the result intended” and that if enacted it instead “would further aggravate an already intolerable situation.” Ideally it should be left to a physician “to decide what the health of his patient requires” and if “in this field any additional protection is necessary, surely a corroborative opinion from one or two other physicians would suffice.” Under questioning Pilpel forthrightly volunteered that “I believe it is a right of a woman to decide whether she should have children,” and a Unitarian minister from Albany and a representative of New York’s Liberal Party also voiced personal preferences for repeal. Journalist Larry Lader tactfully asked that “the broadest possible reform bill be passed,” but Dr. Hall and Assemblyman Sutton recommended ALI-style liberalization. The New York Times coverage of the hearing stressed that Sutton’s bill had “little chance of enactment,” but editorially the Times once again commended the measure as a “compassionate” replacement for the “cruel and unrealistic” existing statute.65
ASA remained a relatively unfocused and low-visibility enterprise, though it did sponsor a mail opinion survey of American psychiatrists that showed more than 90 percent favoring statutory reform but less than 25 percent backing repeal. In private, Alan Guttmacher continued to insist that “the task of this generation is to broaden our laws significantly, but not repeal them.” “I do not advocate abortion on demand,” he told one woman, “because (1) I think America isn’t ready for it and (2) It makes people disregard the use of effective contraception and (3) It develops in both the medical profession and the laity a lack of reverence for life.” A South Dakota representative introduced a liberal reform bill in that state’s legislature, and in Texas Dr. Hugh Savage’s effort to get that state’s doctors on record as backing reform began to bear fruit as the Texas Medical Association appointed a six-doctor study committee to draft a recommendation to the state legislature endorsing therapeutic liberalization. “All we’re asking,” TMA president Dr. James D. Murphy told reporters, “would be to give legal status to procedures now being done.”66
But the most significant political developments of early 1966 regarding abortion took place in California, where wealthy St. Louis contraceptive foam manufacturer—and one-time PPLC contributor—Joseph Sunnen had decided to finance a new proreform organization, the California Committee for Therapeutic Abortion (CCTA). The new organization would have two principal aims: first to generate widespread support for an ALI-style Beilenson bill in advance of the 1967 session of the state legislature, and second, and far more importantly, to pave the way toward full repeal by either legislative or judicial action. In late March Sunnen and his top deputy, Al Severson, approached two suitable Californians, UCLA public health professor Ruth Roemer and Episcopal clergyman Lester Kinsolving, who had written about abortion in Protestant periodicals and was a top protégé of California Bishop James A. Pike, with their proposal. Kinsolving quickly assured Sunnen that the Episcopal Diocese would he happy to receive and pass on his contributions to CCTA, and Severson immediately sent Kinsolving a check for twenty-five thousand dollars, saying that “The money is to support the pioneer work in California to bring light and hope to the thousands of people who suffer … the miseries and heartbreak of back-street abortions.” Roemer, assigned to find an appropriately high-status chairman for CCTA, first approached University of Southern California Medical School dean Roger O. Egeberg, who declined but strongly recommended his friend and colleague, prominent obstetrician Keith P. Russell. Before the end of March Russell had accepted the chairmanship and a paid executive director, Dorothy Stolz, was formally on staff.
Sunnen’s creation of CCTA represented more money than had ever before been invested toward abortion law change anywhere in America, and he explicitly envisioned making a total investment of somewhere between two hundred and five hundred thousand dollars to achieve abortion law repeal in California. Sunnen and Severson explained to Kinsolving and Roemer that one top priority ought to be a possible test case, perhaps using a very young and respectable woman who would seek court approval to abort a pregnancy that had resulted from rape. Kinsolving noted that such a case could rely in part upon Griswold, and in search of other test case possibilities he also surveyed the records of all twenty-two people presently incarcerated in California for abortion offenses. He was very disappointed to find that only one of the twenty-two was an M.D., and that his record also featured six narcotics and two murder convictions—not a plausible test case plaintiff.67
In March 1966 the California Medical Association formally endorsed therapeutic reform, and a close attorney friend of Roemer’s, Norma Goldstein Zarky, encouraged a UCLA law student to explicate some of the test case thoughts that were being bandied about. Some eight weeks later, however, a potential test case was handed to the CCTA leadership when the state Board of Medical Examiners, at the behest of one outspoken member, Roman Catholic Los Angeles obstetrician James V. McNulty, brought unprofessional conduct charges—as distinct from criminal complaints—against two San Francisco M.D.s, J. Paul Shively and Seymour P. Smith, with regard to some ten rubella and fetal defect abortions that they had performed in licensed hospitals with colleagues’ approval. One CCTA board member and physician, Edmund “Ned” Overstreet, pressed for creation of a CCTA-backed defense fund for Smith, Shively, and another half-dozen San Francisco doctors whom the Medical Examiners Board soon added to its target list on similar grounds, but at an early June meeting of CCTA’s board Joseph Sunnen himself downplayed the significance of the Shively case on the grounds that no matter how it developed it was unlikely to pose a direct, frontal challenge to the constitutionality of California’s existing antiabortion law. The doctors moved to challenge the Medical Examiners’ charges in state court, and Ned Overstreet hoped that Sunnen would shoulder their legal fees in addition to a constitutionally oriented amicus brief that CCTA would sponsor on behalf of other doctors and that Zad Leavy would prepare.
Pat Maginnis’s SHA contributed to the increasing California activity by doing some well-publicized leafletting in downtown San Francisco with pamphlets featuring first the names and addresses of dependable Mexican abortionists and then directions for how to perform self-administered abortions. In late July Maginnis was arrested but the charge was soon dismissed, and despite police monitoring of at least one “do-it-yourself” instruction session taught by Maginnis, no further controversy ensued. A statewide Field Poll in July showed that 65 percent of Californians backed therapeutic liberalization, but the hopes of the professionals in CCTA turned increasingly toward the courts. They realized far better than casual observers how very modest an achievement the Beilenson bill would be even if passed into law, and while they applauded the September endorsement of it by the California State Bar Association, they welcomed the judicial prospects of the Shively challenge even more enthusiastically. Zad Leavy told one legal colleague that Griswold “gave us the beginning of an answer if the legislature cannot find it,” and in late September the Southern California ACLU announced its conclusion that a woman’s decision regarding abortion represented a “fundamental right” and not a legislative policy choice. “Under the right of privacy guarantees of the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments to the U.S. Constitution, it is for each individual to determine when and whether to produce offspring,” the ACLU branch said, “without interference by the state.” “The present laws prohibiting abortion in California infringe upon this fundamental right.”68
The increasing sense of change was not simply a professional phenomenon, however. CCTA executive director Dorothy Stolz, informing the board in midfall about ongoing public education efforts, indicated that “Our speakers are reporting a change in response of audiences. Women’s groups in particular seem to accept the [ALI] Model Penal Code indications for abortion without question and are interested in considering social and economic indications.” New locally based reform groups were being created in Minnesota, Wisconsin, Ohio, and Illinois, and in Texas Dr. Hugh Savage’s efforts to move the Texas Medical Association toward backing a reform bill in the 1967 legislature were proceeding apace. The New York activists, with author Larry Lader in the lead, similarly resolved to make a new legislative push in 1967, and by late October Lader and Bob Hall had recruited Assembly Public Health Committee chairman Albert H. Blumenthal as principal legislative sponsor for a bill that Lader hoped would reach well beyond ALI-style reform. Lader was also discussing a possible abortion test case with a longtime doctor friend, William B. Ober, who was on the staff of Manhattan’s Knickerbocker Hospital and who had just authored a highly visible article in the Saturday Evening Post entitled “We Should Legalize Abortion.” Ober’s sentiments were little different from those that Garrett Hardin and Dorothy Kenyon had articulated previously, but Ober’s received a circulation that was many thousand times greater. “Every woman should be able to have an unwanted pregnancy aborted at her own request, subject only to the consent of her husband and the advice of her physician,” Ober declared. “To me, it is unthinkable that a civilized society should require a woman to carry in her womb something she does not want, whatever the reasons.”69
Ober’s essay was noted in other periodicals, and Newsweek magazine, picking up on a talk by Bob Hall, ran a one-page article entitled “The Abortion Epidemic.” Other coverage noted the endorsement of at least therapeutic reforms by groups including the American Lutheran Church. The New York Times published a story on Pat Maginnis’s California self-instruction efforts, the first national attention Maginnis or SHA had ever received, but the piece managed to call the thirty-eight-year-old Maginnis both “a zealot” and “a spinster.” The New York-based ASA was momentarily preoccupied with the contentious firing of executive director Ruth Smith and the hiring of her replacement, Jimmye Kimmey, a young female academic. In Illinois, however, several energetic Chicagoans who five years earlier had established a pro-birth control group now announced formation of what would be America’s first organization that explicitly backed repeal rather than reform, the somewhat ungainly and misleadingly titled Illinois Citizens for the Medical Control of Abortion (ICMCA).70
ICMCA’s guiding spirit was a forty-four-year-old female anesthesiologist and mother of five, Caroline Rulon “Lonny” Myers, a Hartford native and Vassar graduate who in late 1961 had taken the lead in founding Citizens for the Extension of Birth Control Services to advocate the availability of birth control advice to public aid recipients at Chicago-area public hospitals. It had taken several years before that issue had finally and favorably been resolved, and in the immediate wake of that victory, Myers had told her two principal colleagues in the birth control group, attorney Ralph E. Brown and Episcopalian clergyman Don C. Shaw, who actually worked as education director of Chicago Planned Parenthood, that abortion repeal should be their next goal. First Unitarian Church in Hyde Park, where Myers was a member, offered ICMCA office space, and by early in 1967 ICMCA was up and running as a tangible organization. “The ultimate decision regarding an abortion,” Myers declared in an initial letter announcing ICMCA’s formation, “should rest only with the pregnant woman and her physician.”71
Unlike Myers and Shaw, California’s CCTA had a far less pronounced preference for repeal over reform, but CCTA’s most important accomplishment in late 1966 was its sponsorship of Zad Leavy’s amicus brief in J. Paul Shively’s initial judicial challenge to the disciplinary hearing that the Board of Medical Examiners was seeking to hold concerning his and his colleague’s past performance of hospital-approved rubella abortions. In late November Leavy and Herma Hill Kay, a young University of California at Berkeley law professor, filed the thirty-nine-page amicus brief with the California Supreme Court on behalf of several hundred nationally prominent doctors, including Alan Guttmacher, Bob Hall, and Lee Buxton. Far more significant a document than the procedurally oriented brief submitted by Shively’s own principal counsel, Robert Lamb, the Leavy brief represented the first judicial filing to expressly argue that the privacy holding of Griswold could and should be applied to abortion.
“The primary purpose of the anti-abortion laws” dating from the nineteenth century, Leavy and Kay asserted, “is to protect the woman from unskilled abortionists and others operating outside the scope of sound medical practice.” In their right to privacy analysis, they reached back and offered a two-page recapitulation of the 1936 decision in One Package before proceeding to an inclusive statement of the meaning of Griswold: “It is a palpable invasion of the right of privacy guaranteed by the due process clause of the Fourteenth Amendment for the state to inject itself into the sanctity of the marital relationship and dictate that the advice of the physician may not be followed, when that advice lies within the ambit of sound and accepted medical practice.” Relying in part directly on an analysis that Leavy and his friend Jerry Kummer had just published in a law review article, the brief went on to assert that “The striking similarity of the anti-abortion laws and the Connecticut anti-contraceptive statute is too patent to be overlooked.” “Both statutes invade the intimate realm of marital privacy,” Leavy said, twice citing Tom Emerson’s 1965 article and its reference as to how Griswold’s right to privacy might also apply against abortion laws. “The enforcement of these statutes strikes a sharp blow at the right of privacy of married persons by preventing them from making a personal, intimate and crucial decision which may affect their own health and well-being as well as that of their family for the rest of their lives.” “It is constitutionally repugnant,” he went on, “for the government, through regulation of physicians, to invade the privacy of a husband and wife to dictate a decision which is intimate and personal to the marital relationship, and which deeply affects the health and well-being of the wife and the family. It seems no less an invasion of personal privacy for the state, through regulation of its physicians, to dictate to any person a decision deeply affecting her health and well-being.”72
Within four weeks of that filing, however, the California high court would issue an order favorable to Shively but of only procedural, not constitutional import in countering the board’s upcoming administrative hearings. Nationwide the abortion agenda would turn to a legislative focus—but on a scale dramatically larger than anyone had envisioned possible in 1965 or even in the summer of 1966. Therapeutic reform bills would be considered by the legislatures of at least twenty-five states during the first eight months of 1967, and while surprising successes would be registered in several, in none of them would the press coverage, or the religious controversy, exceed that of New York. Before six months were out, developments in three other states—Colorado, North Carolina, and California—would outstrip in tangible, short-term importance the earlier New York legislative battle over reform, but in several prominent ways the New York contest would set the stage not only for 1967 events elsewhere but for New York’s and other states’ struggles in future years as well.
Even before the end of 1966 the New York State Council of Churches, the Episcopal Diocese, and Governor Nelson Rockefeller all called for the passage of reform legislation in the upcoming legislature. The New York Times resumed its editorials in favor of modification of the “cruel and out of date” existing law, but the journalistic consensus was that passage of any reform measure was “unlikely” in the face of opposition by both Democratic assembly speaker Anthony J. Travia and Republican senate majority leader Earl W. Brydges. On January 17, along with more than three dozen cosponsors, Manhattan Assemblyman Albert H. Blumenthal introduced an ALI-style reform bill that was promptly attacked by the New York Catholic Welfare Committee as authorizing the “slaughter of the innocents.” The Roman Catholic Bishop of Albany, Edward J. Maginn, said he was “saddened and shocked” that Protestant churches would support a bill that was “neither Christian nor reasonable,” and at an initial February 3 hearing on the Blumenthal measure affirmative witnesses including Harriet Pilpel were opposed by leading Catholic spokesmen. Pilpel once again articulated a firm preference for repeal over reform, explaining that “The right to free choice in the area of procreation is as fundamental a civil liberty and constitutional freedom as the right to life and liberty itself,” but a second day of hearings on February 8 was marked by especially intense Catholic attacks on even the notion of therapeutic reform.
Journalists predicted that such opposition meant the bill had little chance of success, and one black Roman Catholic legislator who supported it, Manhattan Assemblyman Basil A. Paterson, emphasized that “We’re not telling Catholics they have to get abortions. We’re only asking them not to dictate to the rest of the population what they can and cannot do.” On February 12, however, the state’s eight Roman Catholic bishops issued a joint letter—the first such document ever—and had it read from every Roman Catholic pulpit in New York. Reporters disclosed that Speaker Travia had removed Blumenthal from an important Democratic Party policy position without giving a reason, and the following day two Roman Catholic assemblymen from Brooklyn delivered floor speeches bitterly attacking Blumenthal for sponsoring the bill. Democrat Lawrence P. Murphy cited the hierarchy’s missive and told his colleagues that “I have to believe my eight Catholic Bishops who tell me how to believe.”
The New York Times renewed its endorsement of reform in an editorial that asserted that there were “2,000 abortion deaths every year” in the state, and New York’s junior U.S. Senator, Robert F. Kennedy, himself a Roman Catholic, publicly announced that “there are obvious changes that have to be made” in the existing statute. His Senate colleague, Republican Jacob Javits, quickly agreed, saying that “intelligent reform is long overdue.” The Times repeated both senators’ remarks in another editorial endorsement of reform, and underlined the modesty of that position by publishing an op-ed article that termed Blumenthal’s bill “only one small step toward a truly enlightened solution” and asked “what business has the state in dictating to a woman what she is to do with her own body?” Pessimistic legislative predictions continued amidst Roman Catholic clergy attacks on Senator Kennedy over his statement, and national stories testified to a burgeoning wave of reform efforts. One medical weekly announced that “the push for reform is gaining momentum from coast to coast,” and the AMA’s Journal of the American Medical Association (JAMA), published a proreform editorial highlighting how more and more doctors were becoming acutely aware of the disparities between accepted medical practice and century-old statutes. Nationally some ten thousand “legal” therapeutic abortions a year were now being performed, usually on mental health grounds and in large part because of the rubella epidemic, under statutes that authorized abortions only to save a woman’s life. “American medicine,” JAMA thus noted, “is therefore confronted with a situation where many of its conscientious practitioners are daily acting contrary to existing laws,” as California’s Shively case so bitterly highlighted. All of this was evidence, JAMA said, of “a profound restiveness for reappraisal and updating of our statutes to keep pace with 20th-century medical practice.”73
Americans for Democratic Action (ADA), a mainstream liberal group, endorsed repeal and declared that “a woman has the absolute right to decide whether or not she should have an abortion,” but they were quickly attacked by the ostensibly liberal Protestant weekly The Christian Century, which complained that “new laws based on ground as unsure as absolute rights can be as inhumane as the ones they seek to replace.” One New York City minister, Howard Moody, a forty-five-year-old Dallas native and Marine combat veteran, wrote in another Protestant journal that present-day supporters of the old laws were motivated by “a desire to inflict retribution and punishment upon women” and that Griswold showed the path toward judicial repeal. “The control of a fetal appendage in the body of a woman … by civil law can only be viewed as an infamous invasion of individual privacy and denial of the freedom of choice. I believe the Supreme Court will eventually find our abortion laws unconstitutional.”
Time magazine ran an article highlighting the growing religious tensions, and the usually liberal Catholic weekly Commonweal, which had been among the first Catholic voices to speak out against the anticontraception statutes, printed a hard-line editorial attacking the New York reform bill. A human fetus at any stage of development, it said, was either a full human person or, dichotomously, “nothing but another chunk of matter.” “We doubt there can be a middle ground,” Commonweal insisted. Catholic law professors such as Fordham’s Robert Byrn weighed in with similar articles in professional journals, and in a subsequent short essay in Commonweal itself Byrn reiterated the view that “there is no qualitative difference between life at conception and life at birth.” Well-known Catholic scholar Robert F. Drinan warned in the Jesuit weekly America that “The advocates of abortion clearly have the initiative at this time,” but Drinan implicitly suggested that a compromise on reform might help stave off the much more far-reaching change of repeal. “One can wonder … whether the indiscriminate availability of contraceptives today would have come about if Catholics, instead of seeking to retain an absolute ban on all contraceptives, had negotiated for a law restricting their sales to married persons by a physician’s prescription.”
Moderate reformer and ASA president Bob Hall went so far in one symposium as to say that “the decision to destroy a pregnancy more rightfully belongs to the pregnant woman than to her physician,” and the American Civil Liberties Union, after previously turning aside Dorothy Kenyon’s repeated entreaties on the subject, now began to wrestle with the prorepeal positions that had been adopted by its New York and Southern California chapters. Perhaps surprisingly, however, Kenyon’s position attracted little more support than it had in prior years, with the appropriate board committee reporting to the full ACLU board that “There was almost unanimous agreement that restrictive laws were not unconstitutional on their face. The Committee felt that restrictive abortion laws … while unduly restrictive, are not so unreasonable as to be unconstitutional. The Committee felt that society could decide … to place such value on the life of the unborn child as to render abortion possible only in a narrow range of circumstances.” As a matter of legislative policy, as distinct from a question of rights, the board committee “felt that a woman ought to have an unfettered right to decide to have an abortion up to the first 20 weeks.”
When the full ACLU board considered the subject in mid-February, Kenyon had no better success there than in committee in convincing her colleagues that the choice involved a question of individual rights rather than legislative preference. One board member unsuccessfully complained “that we cannot neglect the father’s right to have a child,” and Harriet Pilpel moved to address one question the committee had not mentioned by advocating that therapeutic ALI standards be used to decide any post-twenty weeks abortion requests. Kenyon spoke up vociferously, saying—in the words of the Board’s minutes—“that she does not concede that the state has any legitimate interest in protecting the life of an unborn child, even after 20 weeks” and that she was “unwilling to impose any time limits on the mother’s unfettered discretion to abort herself.” The board, however, first weakened the committee recommendation by moving even the preferred legislative dividing line forward from twenty weeks to the first three months of pregnancy, and then sent back to committee the entire subject of what exemptions if any should be endorsed for the six latter months.
An angry Dorothy Kenyon circulated a letter calling the board discussion “a shambles of irrelevance and illogic” and reminding her colleagues that “For lo! these many years I have been a Cassandra crying out in the A.C.L.U. wilderness against the crime of abortion laws and man’s inhumanity to women.” She reiterated her contention that “the abortion law is a violation of civil liberties because it imposes upon woman a kind of bodily slavery,” but one ACLU officer quickly circulated a letter of rebuttal, emphasizing that “everyone present” at the meeting except Kenyon “thought it entirely impractical to support any such extreme position.” One female colleague from Philadelphia wrote Kenyon to voice her agreement, saying “There should be no restrictions upon the basic human right of a woman not to bear a child that she does not want.” Frustrated within the ACLU, Kenyon nonetheless continued to champion her long-held position in other venues, including television talk shows. In an article in an ADA publication she termed therapeutic reform bills “woefully inadequate” and called for abolition of the “cruel and unconstitutional abortion laws” that infringed upon “the right to control our own bodies.”74
Another combative rebel within the growing ranks of repeal advocates was a thirty-three-year-old former medical student from Long Island with a highly developed taste for publicity, William R. Baird. Two years earlier, in May of 1965, Baird had been let go from a marketing job with Joseph Sunnen’s Emko Pharmaceuticals when his crusading urge to challenge New York’s remaining statutory ban against the distribution of contraceptives by nonprofessionals became more than the company wanted to bear. A week after first going public, Baird had succeeded in getting arrested in the town of Hempstead for dispensing birth control materials, but six months later, in November of 1965, the charges had been dropped. In August of 1966 Baird had drawn press attention by picketing St. Patrick’s Cathedral in midtown Manhattan along with his wife and two of his four children to protest the Catholic church’s opposition to birth control, and a month later Baird managed to get himself arrested in Freehold, New Jersey, for displaying contraceptives in violation of an antiquated state statute. Baird’s initial conviction and hundred-dollar fine were subsequently reversed by the New Jersey Supreme Court on the grounds that the old law was unconstitutionally vague, but within weeks of the New Jersey arrest Baird and about fifty young followers turned out to picket the PPFA annual awards dinner at New York’s Waldorf Astoria. Baird told puzzled reporters that they were protesting both the excessive fees he said Planned Parenthood clinics charged poor women for birth control pills, and PPFA’s bestowal of its top prize, the Margaret Sanger Award, which the previous year had gone to Estelle Griswold and Lee Buxton, to President Lyndon B. Johnson. Baird’s demonstration certainly did not endear him to his ostensible allies within Planned Parenthood, and in mid-February 1967, with New York press interest in abortion at a new peak because of the battling over the Blumenthal bill, Baird and a previously publicity-shy ally, Nathan G. Rappaport, made a joint public appearance in Hempstead.
Nathan Rappaport was in his own obscure way, like Tim Timanus, quite well-known. Sixty-six years old at the time of his appearance with Baird, the swarthy-looking Rappaport had spent nine of the last sixteen years in jail and estimated that he had performed some twenty-five thousand abortions since he had first begun practicing medicine in the Jackson Heights section of Queens in the 1920s. Rappaport had achieved a certain sort of word-of-mouth status from his anonymous 1962 memoir in which he had styled himself as “Dr. X,” and Baird for some time had been quietly referring abortion seekers to him. Others in the New York activist community, however, understood that whatever Rappaport’s medical skills might have been in earlier years, his specific technical competence was no longer sufficiently error-free as to merit adequate confidence.
In their Hempstead appearance, however, Rappaport was a secondary figure in Baird’s hope that a public display of abortion instruments, accompanied by descriptive remarks, would be sufficient to win arrest by the Hempstead police, Nassau County detectives, and Nassau County assistant district attorney who made up a good proportion of the modest audience, but the lawmen refused to play their assigned role. “It’s your duty to arrest me,” Baird insisted. “I have clearly violated the law.” An unhappy Baird had to go home rather than to jail, but his entry onto the abortion scene introduced a dramatic and confrontational player into the flourishing national drama.75
New York of course was far from the only state where abortion had become a public and legislative issue during January and February of 1967, and while in some reform measures died quickly, in others they generated considerable attention and heat. In Connecticut a female state senator introduced an extremely modest reform bill that called simply for adding an exception for pregnancies resulting from rapes to the state’s nineteenth-century statute allowing only abortions necessary to save a woman’s life. Literally no proponents showed up to testify in favor of the measure, but longtime PPLC adversary Joseph P. Cooney did appear, on behalf of Connecticut’s three Roman Catholic bishops, to attack the bill on moral grounds and warn that it undoubtedly would become too permissive. Not surprisingly, neither that bill nor a subsequently introduced ALI-style bill even emerged from committee.76
In Arizona the state Medical Association, which had endorsed therapeutic reform in April 1966, had its legislative counsel aid four Democratic state senators in introducing a bill whose language directly mirrored the association’s position. The Senate Public Health Committee held hearings on the measure in January of 1967 and approved it by a 5 to 3 vote, but then the state’s Roman Catholic bishop sent a vociferous letter of opposition to every member of the legislature and also instructed pastors to read it from the pulpit at Sunday services. Legislators were immediately deluged with a considerable quantity of opposition mail, and the Medical Association backed away from the issue as a second round of hearings took place before the Senate Judiciary Committee. Ten days after the bishop’s letter had been distributed, the committee formally killed the reform bill. A subsequent survey of Arizona’s Catholic clergy found that 79 percent of them identified abortion as a “very important”—as distinct from just an “important”—issue, and 55 percent of them indicated that they had personally contacted one or more legislators after receiving the bishop’s letter. While reform proponents had melted away or failed to take the field, reform opponents had mustered their forces most impressively.77
In Georgia, state representative Richard L. Starnes, Jr., of Rome prepared an ALI bill in conjunction with staff members of the Medical Association of Georgia, the state doctors’ group, and after relatively pro forma hearings and judiciary committee consideration the state house passed it on March 1 by the overwhelming margin of 129 to 3. At that point, however, potential opponents began to mobilize, and an editorial attacking the bill immediately appeared in the weekly newspaper of the Atlanta Archdiocese. Several Roman Catholic clergymen contacted Senate Judiciary Committee chairman Robert H. Smalley, Jr., of Griffin, and when Starnes appeared before that committee on behalf of his bill several days later, it quickly became clear, he later explained, that “most of them felt I had thrown them a hot potato which they had just as soon I had left alone.” On March 14 the Senate Judiciary Committee voted four to two to defer action on the bill, and proponents indicated that they would try again at the outset of the 1968 legislative session.78
While the 1967 Arizona and Georgia reform measures were being turned aside, the New York reformers and their many journalistic supporters were still trying to advance the Blumenthal bill there. The New York Times’s editorials now emphasized that therapeutic reform “would not legalize abortion indiscriminately,” and ASA’s Bob Hall, in conjunction with John V. P. Lassoe, Jr., of New York’s Episcopal Diocese, and wealthy liberal philanthropist Stewart R. Mott, created an Ad Hoc Committee for Abortion Law Reform to convey the impression that a popularly based lobby group backed the bill. Life magazine weighed in with an editorial declaration that “present laws are badly out of step with life” and noted that 71 percent of Americans, including 61 percent of Roman Catholics, endorsed abortion when a woman’s health was at risk. “Each year 5,000 of the desperate die,” Life emphasized, and “present laws refuse to recognize that these women face a real problem. Laws that lead hundreds of thousands to risk their lives to break them need restudy and reform.”
New York legislative leaders deferred committee action on the Blumenthal bill for more than a week, and a small group of Roman Catholic laity issued a statement backing the measure and saying that the law ought to allow “individual citizens the free exercise of their conscience.” But on March 7 the Assembly’s Codes Committee voted 15 to 3 to kill the reform measure, and sponsor Blumenthal said he was “disappointed” while Republican Governor Nelson Rockefeller termed the defeat “unfortunate.” The following day Blumenthal publicly requested that Rockefeller appoint a special commission to study and report on the issue of abortion law change, and the following evening, at a private dinner party in Manhattan, the governor told a fellow guest, Alan Guttmacher, that he was indeed inclined to accept Blumenthal’s suggestion. Guttmacher several days later sent Rockefeller a long list of possible members for such a commission, but most other abortion activists were not about to wait quietly until some such commission report a year hence could be used to resuscitate legislative prospects for reform.
Three days later Bill Baird led 150 marchers in a protest outside St. Patrick’s Cathedral that “attracted little attention” in the judgment of the New York Times, and Larry Lader and John Lassoe held a press conference to announce that a network of ministers would soon begin publicly offering abortion provider referrals to pregnant women. Lader had found himself privately deluged with such requests ever since his book, simply titled Abortion, had been published ten months earlier, and he had first raised the possibility of organizing such a referral system with Howard Moody, the Manhattan pastor who shared Lader’s prorepeal sentiments, back in September 1966. Lader himself had initially referred women either to Robert D. Spencer, a now ageing doctor in Ashland, Pennsylvania, who had just recently retired from a longtime career as a family practitioner and abortion provider, or to a distinguished Arkansas physician who had contacted Lader soon after his book had appeared. By now most of Lader’s private referrals were going to a brusque and iconoclastic Serbian-born physician in Washington, D.C., Milan Vuitch, who had successfully weathered two attempted criminal prosecutions in Maryland and Virginia, but the idea of a public referral operation struck some longtime reform backers as distasteful, and Bob Hall publicly disassociated himself and ASA from Lader and Lassoe’s announcement.
Defeat of the Blumenthal bill also stimulated Lader to revive his and William Ober’s previous discussions about creating an abortion test case. Ober had raised the subject several times with a forty-seven-year-old gynecology colleague at Knickerbocker Hospital, Dr. Wayne Decker, and now Lader told Ober, Decker, and lawyers Harriet Pilpel and Cyril Means that “it seems important to proceed with our plans … in the next few months.” Lader and Ober had talked about either a teenager or an older, married woman who did not want another child as an ideal test-case patient, and while Lader aspired to “the broadest possible judicial interpretation,” he nonetheless worried that “if we cannot guarantee that the woman’s identity can be kept out of court and out of the press, it may be extremely difficult to find a case.” In early April Lader met to discuss legal possibilities with Pilpel and Means, but the somewhat pompous Means insisted that any notion that they should argue that existing antiabortion statutes were unconstitutional in light of the Fourteenth Amendment’s due process clause liberty language was “so perspicuously absurd” that he would not join such a case.
In a follow-up letter, Means instructed Lader and Pilpel that “I can discern a respectable and cogent constitutional argument in two, but only in two, cases: (1) pregnancy caused by rape; (2) pregnancy that will predictably result … in birth of a deformed child.” All other pregnancies, Means explained, fell well within the “fundamental notion of law and morals that one can be held responsible for the natural consequences of one’s acts.” Hence, except for pregnancies involving rape or deformities, “I perceive none in which there is the faintest chance that any court would sustain a contention of unconstitutionality.” Means said that “I believe in abortion on demand” as a legislative policy preference, but that if Lader and Pilpel went ahead with any test case, “there will be a resounding defeat.” Worst of all, he claimed, the resulting judicial opinion “will be quoted triumphantly by the enemies of abortion law reform in the legislative forum for years to come. If someone had asked me to suggest some step which abortion law advocates of reform could take which would be as counterproductive as possible, I doubt if I could have hit upon anything so admirably adapted to that purpose as this test case.”
Means’s dismissive broadside irritated both Lader and Pilpel. Lader believed strongly that a rubella-fetal defects case was far too narrow a claim to be worth litigating, and Pilpel told Means that she “could not disagree more” with his constitutional perspective, especially in light of an unpublished essay she had just received by a young scholar that argued that such constitutional attacks on abortion statutes “have an excellent chance of prevailing.” Pilpel’s rebuttal humbled Means and “delighted” Lader, who was also happy that Ober had obtained the support of Knickerbocker Hospital’s executive director, Alvin Conway. Other activists such as John Lassoe were already focusing on 1968 New York legislative prospects, but Lader hoped that if a willing patient could be found, the abortion struggle could make headway in the courts even before the next session convened.79
New York, Arizona and Georgia were not the only states where reform advocates had suffered early 1967 legislative defeats. In Indiana an ALI-style bill that had the backing of the state medical association and the Indiana Council of Churches had passed the state House but had been “gutted” in the state senate so that only pregnancies resulting from rape or incest would be added as statutory exceptions. The senate had passed this watered-down measure, but Indiana’s governor then vetoed it. In North Dakota a reform bill introduced by a first-term female legislator had been defeated by a five-vote margin, and in Hawaii, where both a reform bill and a repeal measure had been introduced, the reform proposal won approval in one committee before being tabled in another. Reform bills had also been rejected in New Mexico and Nebraska, and in New Jersey a 4 to 3 decision by the state Supreme Court drew extensive attention to the abortion issue there. The court dismissed a “wrongful birth” claim brought by a couple who contended that their doctor improperly had failed to alert them to the danger that a deformed infant would result from the mother’s bout with rubella, and that the doctor should have recommended an abortion. The court’s narrow majority declared that any such recommendation would have been improper, and, focusing upon the deformed fetus, rather than the traumatized parents, asserted that “the sanctity of the single human life is the decisive factor” in deciding the case. “The right of their child to live is greater than and precludes their right not to endure emotional and financial injury,” the court asserted. Some observers, including New Jersey prosecutors, called for a statutory review in light of this apparent declaration that each and every rubella abortion would violate the existing state statute, but Governor Richard J. Hughes and state legislative leaders brushed the matter aside.80
Even before Bill Baird’s demonstration outside St. Patrick’s Cathedral in the wake of the New York legislative defeat, Baird had been recruited for another protest venture by the student newspaper at Boston University, the B. U. News, and its editor, Raymond Mungo. B. U. News announced to its readers in early March that it had invited Baird to visit the campus four weeks hence to “distribute free lists of abortionists and birth control devices to interested coeds” and to give a lecture. The News also ran an article by Baird in which he explained how his interest in providing birth control and abortion services for poor women had grown out of an experience he had had while representing Emko in which he had witnessed the emergency-room death of a woman who he was told was a twenty-nine-year-old mother of eight, following a bungled illegal abortion. Baird claimed in his piece that the 1966 national death toll from illegal abortions had been more than ten thousand, and he noted that Massachusetts, even after the 1966 post-Griswold revision of its birth control statute, still had a law, similar to those under which he had been arrested in New York and New Jersey, prohibiting the display and/or distribution of contraceptive materials other than to married people by a physician. “I am now ready to test this law in Massachusetts as well,” Baird proclaimed, and he emphasized that “no group, no law, no individual can dictate to a woman what goes on in her own body. That decision must remain her own.”81
Soon after that article appeared, Baird received a petition signed by some seven hundred B.U. students seconding the News’s invitation, and on Thursday, April 6, Baird appeared on the stage of B.U.’s Hayden Auditorium before an overflow crowd of some fifteen hundred to two thousand people, and 65 percent female. Editor Mungo introduced Baird and told the audience that “We are here to test the legal aspects of the birth control and abortion laws in the state of Massachusetts.” That was not difficult to tell, as seven Boston Police Department officers and detectives were present, in part because advance publicity concerning Baird’s appearance and intent had led state senate Public Health Committee chairman William X. Wall to call for Baird’s arrest if he followed through on his declared intent. Three vice squad officers stood right behind the stage curtain as Baird began his sixty-minute talk and listened as he told the students that they were being “enchained by men who have no right to dictate to you the privacy of your bodies.” Toward the end of his lecture Baird explained that he was about to distribute both a mimeographed list of abortion providers outside the United States and packages of Emko vaginal foam. He called upon the watchful officers “to do their duty” and told the audience that “the only way we can change the law is to get the case into a court of law.” He then invited those in the audience who wanted packages of foam to come up to the stage, and about twenty women immediately came forward. Baird himself handed packages to approximately six of the women, and others took packages from a carton on the podium. The officers on the stage then finally moved toward Baird, and one of them, Lieutenant—and later Boston Police Commissioner—Joseph M. Jordan, placed his hand on Baird’s shoulder and Baird asked the crowd if ACLU attorney James Hamilton was in the audience. He had to repeat the question a second time before Hamilton headed toward the stage amidst a standing ovation from the crowd, and Jordan and officer Edward McHale informed Baird that he was under arrest. None of the young women to whom Baird had handed packages of foam were identified or detained, though one told a reporter that “None of us were planted.” Baird was placed in a car and taken to police headquarters, where he was released on one hundred dollars bail for an initial court appearance the next day. “I feel I have achieved my purpose of bringing the law into the courts,” Baird told reporters, and at his Friday arraignment he pled not guilty and a court date four weeks later was set.
In the ensuing two weeks Baird gave well-attended talks at Harvard, Tufts, and other Boston-area colleges without repeating his distribution of contraceptive foam, but at least one of the speeches, at Simmons College, was monitored without incident by Boston police. Baird’s B.U. sponsors began a defense fund to meet his court costs, but the Massachusetts Civil Liberties Union, uncertain as to whether prosecutors would proceed against Baird for anything he had said or only on the issue of having distributed the foam, let him know that they were uncertain as to whether they would continue to represent him. Baird was put in touch with another Boston attorney, Joseph J. Balliro, who agreed to defend him without fee, and Baird thus dispensed with any further assistance from the lukewarm ACLU. Balliro represented Baird at his next court appearance in early May, where the case was formally passed along to Superior Court for indictment and trial. Sixteen student pickets turned out to protest Baird’s prosecution, but the Planned Parenthood League of Massachusetts (PPLM), in its May newsletter to supporters, went out of its way to disassociate itself from both Baird and his court challenge to the existing Massachusetts statute. Baird “is in no way connected with Planned Parenthood,” the newsletter declared, and the current laws forbidding the distribution of contraceptive articles to unmarried individuals “do not … deny anyone his constitutional rights to use contraceptives or to talk about them—therefore there is nothing to be gained by court action of this kind. The only way to remove the limitations remaining in the law is through the legislative process.”
Baird told two sympathetic journalists who nonetheless characterized him as “a little too intense, a little too filled with the vision of himself as a martyr” that “Planned Parenthood is a middle class monopoly.” He asserted to a more impressionable reporter from B. U. News that “I never dreamed another birth control group would attempt to destroy me personally,” even though they were “protecting a vested business interest,” but no Boston publication noted the prior history of Baird picketing PPFA’s annual dinner. PPLM received about a dozen letters, apparently from Baird’s young supporters, asking for its view of Baird, and executive director Hazel Sagoff replied that PPLM was “not too disturbed” that the present Massachusetts law “directs women to physicians” and said that “We are told by our lawyers … that there is no violation of constitutional rights in the present law,” which distinguished between unmarried and married individuals in authorizing the dissemination of contraceptives only to the latter. “They tell us, and we agree, that the only way to liberalize the current law is through the process of filing a bill in the legislature and working for its passage.” Sagoff added that PPLM “has no official position on abortion” and noted that Baird “is openly critical of the predominant faith in Massachusetts.” Some years later former PPFA president Loraine Campbell, whose active involvement in the Massachusetts league stretched back a full thirty years to the days of Gardner, acerbicly called Baird “a thorn in our flesh for years.” “He was always talking about abortion under the aegis of birth control, when we were trying to avoid the issue of abortion at that point.” On balance, Campbell said, “Baird did more good than harm,” but then, as she memorably declared, “every social change and every forward step in history requires its nuts.”82
On the very same day that Bill Baird was busy being arrested in Boston, the 1967 nationwide abortion reform effort registered its most surprising and most significant victory when the Colorado state senate passed an ALI-style bill by a vote of 20 to 13. The April 6 tally was surprising both because Colorado had no organized group of proponents on the order of California’s CCTA, and because the bill had been introduced in the legislature only six weeks earlier by a newly elected and otherwise largely unknown thirty-one-year-old Denver representative, Richard D. Lamm, who had lived in the state for only five years since moving from California. Indeed, Dick Lamm’s reform bill came from what seemed to be purely happenstance origins, for the first draft of the bill had started out in December of 1966 as a course work assignment prepared by a third-year University of Denver Law School student, Susan Graham Barnes. Her friend Cindy Kahn showed a copy of Barnes’s work to her husband Ed Kahn, who in turn mentioned it to Lamm, but initially Lamm had no particular thought of introducing any such measure. He told a Unitarian church audience on January 15 that an abortion reform bill “wouldn’t have a chance” in the Colorado legislature, and at a first ad hoc meeting of potential reform proponents the prevailing opinion, Lamm later recalled, “was one of pessimism, because it was our feeling that an attempt to change the law at that point in time” would certainly fail and “would probably hurt more than help toward the eventual passage of a liberalizing law.”
That meeting left some reformers thinking more about educational work than a legislative effort, but as several members of an unofficial steering committee for the group approached other legislators beyond Lamm, “a cautious optimism began to grow” that a reform bill was indeed passable. A good number of legislators cited how the initially hesitant 1965 approval of a measure authorizing the provision of birth control information to public aid recipients had nonetheless proven successful, and “the support in public acceptance” of that initiative “had gone far to pave the way for abortion reform in the minds of legislators,” Lamm later explained. Worries there that political controversy or electoral troubles might ensue had proven wholly chimerical, and the small group of reformers began to appreciate that over “the last few years an immense change” had taken place in public attitudes concerning reproductive issues. Denver Republican Representative Carl H. Gustafson, a Lutheran who had been significantly influenced by his denomination’s recent endorsement of therapeutic reform, agreed to join Lamm in cosponsoring a revised draft of Barnes’s ALI bill, and after setting a minimum target of recruiting at least twenty other advance supporters, they began canvassing other members. “To our great surprise,” Lamm remembered, “virtually every legislator we approached not only agreed to put his name on the bill but manifested great enthusiasm.” It quickly became apparent that there was a much higher chance of actual success than the ad hoc steering committee initially had imagined, and Lamm and Gustafson, along with former Colorado Planned Parenthood president Ruth Steel of Englewood, who had served as the primary lobbyist for the 1965 birth control bill, reached out for wider support. They recruited additional supporters in the medical community, sought the endorsement of the Colorado Council of Churches, and accompanied by at least one minister and one doctor, made courtesy calls upon all of the major media outlets in Denver, particularly the Denver Post, to request editorial support.83
By the time Lamm formally introduced the reform bill on February 23, less than a month after he had made his own firm commitment on the subject, the measure had forty-six recorded sponsors, almost half the membership of the entire Colorado legislature. The thirty-five representatives backing the bill represented a majority of the sixty-five member state house, and the eleven senators, out of a body of thirty-five, included two influential Republicans, John Bermingham and Ruth Stockton. Within a week’s time the number of senate sponsors had jumped to sixteen, and on March 9 a three-hour House Health Committee hearing on the bill took place before an audience of more than one hundred. In preparation, Lamm later explained, the bill’s supporters had agreed to emphasize “that it was strictly a health matter” and “to use as proponents of the legislation the most conservative and responsible people we had at our disposal,” namely “ministers, doctors, and lawyers who had not previously been involved in controversial legislation of any kind.” Over a dozen opposition witnesses squared off against some twenty supportive speakers, but within two weeks of the hearing the committee approved the bill by eleven to four after Lamm had agreed to several amendments requiring parental consent for a teenager under eighteen, spousal consent in the cases of married woman living with their husbands, and unanimous rather than simply majority approval of every procedure by each hospital’s three-doctor abortion committee.84
On March 29, by a vote of 40 to 21, the Colorado house approved the therapeutic reform bill. Five days later the Senate Health and Welfare Committee held its hearing on the measure, and a crowd of angry Roman Catholics turned out to register their opposition. Several foes brought bottled human fetuses to display to the committee, and one opponent’s irate jeers at the committee so embarrassed the two members of the Catholic Lawyers Guild who had sought to coordinate the opposition that they left the session and later formally apologized to the committee for the crowd’s behavior. The following day the senate committee approved the bill by a vote of eight to two, and the day after that it moved to the senate floor. About fifty female opponents of reform staged a brief protest outside the state capitol, but on April 6—just a few hours before Bill Baird’s arrest in Boston—the Colorado senate passed the reform bill by a margin of 20 to 13. The state house then ratified that final version of the measure by a Saturday vote of 40 to 20, and the bill then went to the desk of conservative Governor John Love, who told reporters that “I have not yet made up my mind what I will do with it.” Love previously had hinted that he would indeed sign the measure, and after some four days of apparent indecision, Love on April 25 signed the bill into law. That same day, however, he privately summoned the president of the Colorado State Medical Society to his office and very firmly recommended that doctors and hospitals implement the new measure in a conservative and responsible fashion. Reform proponents’ jubilation over their amazingly quick and obstacle-free victory was somewhat tempered by the realization that only a modest percentage of women seeking abortions would qualify for legal ones under the provisions of the new Colorado statute. That limitation, however, did nothing to stop the wave of national press attention that descended upon the Colorado reformers and their first-in-the-nation achievement. Dick Lamm with some humility told New York’s Larry Lader that he was merely someone who had been “in the right place at the right time,” and other Colorado reform backers emphasized to reporters that the new law would be no panacea, especially if the Colorado medical community followed Governor Love’s guidance in implementing it. “The intent of” the new measure, Adams County District Attorney Floyd Marks stressed to one journalist, “is to promote the well-being of the mother, to avoid impairment of her health. If the doctors can’t face up to their responsibilities,” and implement the statute with that purpose in mind, “this new law will be a farce.” Indeed, Marks noted, Colorado’s modest step forward might simply serve to highlight the inadequacy of the entire therapeutic reform approach. “In time, I think we will all accept the proposition that no woman should be forced to bear a child against her will.”85
In Colorado, the reformers’ success was achieved without any significant participation by the organized medical community. In almost all other states that witnessed 1967 reform efforts, however, the backing for legislative initiatives came principally from state doctors’ groups, and when one medical magazine surveyed over forty thousand American physicians on the question of therapeutic liberalization in March, it found—as the New York Times and other newspapers prominently highlighted—that some 87 percent backed ALI-style changes. That overall statistic included 49 percent support for reform from among Roman Catholic M.D.s, but only 14 percent of all respondents said they supported abortion law repeal. In Texas, where Fort Worth’s Dr. Hugh Savage had been working within the Texas Medical Association for well over a year to be sure that a 1967 reform bill would be placed before the state legislature, his efforts resulted in the successful recruitment of a surprisingly unlikely legislative sponsor. In mid-January Savage and several TMA colleagues, including Dallas’s Dr. James T. Downs III, as well as Page Keeton, dean of the University of Texas Law School, dined with sixty-seven-year-old Dallas state senator George Parkhouse, a sixteen-year veteran of the senate whom one state newspaper characterized as an “outspoken and often cantankerous” “hard rock conservative.” The state’s weekly Roman Catholic newspaper had already published an editorial attacking what it knew would be the TMA’s upcoming reform bill, but Parkhouse was undeterred by such flak and willingly accepted the TMA’s request. On February 21 he introduced an ALI-style bill requiring written endorsement of each prospective abortion by two doctors and majority approval by a five-doctor hospital committee.
Several days later Drs. Savage and Downs, along with Mrs. Harry L. Logan, Jr., a former president of the Fort Worth Junior League, announced the creation of the Texas Committee for the Modernization of Therapeutic Abortion Laws and released a membership list that featured leading Texas doctors and socially prominent women, such as Mrs. Perry R. Bass and Mrs. Robert S. Strauss. Hugh Savage emphasized how many medically appropriate abortions, such as those involving rubella, were technically illegal under existing state law, and in mid-March, when the Senate Public Health Committee held a three-hour hearing on the Parkhouse bill, both Dr. Savage and Mrs. Logan were among eight affirmative witnesses. Two Roman Catholic doctors and the director of the Texas Catholic Conference were among eight opposing witnesses, but after a motion to table the measure was defeated on a vote of seven to six, the committee concluded the hearing by voting to send the bill to the senate floor, where journalists predicted stiff opposition.
Then, on the evening of May 5, with the reform bill awaiting a senate debate and vote, Savage and his allies experienced an unexpected and embarrassing defeat when the TMA House of Delegates, at its regular annual meeting, voted in a narrow and initially disputed tally to approve a committee recommendation that “mental health has no place in consideration of a therapeutic abortion” and that the TMA bill should therefore be substantially revised. An unhappy Senator Parkhouse told reporters that that sealed the measure’s fate. He added that passage had already seemed “beyond any hope” because of the absence of any affirmative “propaganda,” and especially in light of the well-organized opposition. “There has been a lot of pressure from the Catholic press and from members of the church clergy.” Colorado’s success had occurred so quickly that church officials might have been taken by surprise, but in states where they were ready and prepared, such as Texas and Arizona, legislative proponents quickly discovered that state medical associations alone did not have the political weight to recruit majority support for seemingly controversial legislation.86
But Colorado was not the only surprising and unexpected success for reform proponents in the spring of 1967. While the Colorado bill had been sponsored by thirty-one-year-old Dick Lamm, in North Carolina a freshman legislator more than twice Lamm’s age, sixty-five-year-old Arthur H. Jones of Charlotte, a retired North Carolina National Bank vice president, similarly put forward an ALI-style measure. Much of the initiative for Art Jones’s bill came from his good friend and Mecklenburg County Public Welfare Director, Wallace Kuralt, who had long had an interest in reproductive policy issues. Jones himself had met and interviewed Margaret Sanger during the 1920s when he had been an undergraduate at Oberlin College, and both he and his wife, who worked as a counselor in Mecklenburg County family court, had taken an active interest in related issues during the years before his entry into electoral politics. But the original idea for a 1967 initiative was Wally Kuralt’s, and even though Kuralt had never seen the ALI’s Model Penal Code abortion provision, soon after the 1966 election Kuralt discussed his idea with several Charlotte ob/gyns, who reinforced his inclination that the liberalization focus ought to be on the “health of the mother.” Then he and a welfare department attorney, Myles Hanes, wrote out a first draft of a reform bill, and Kuralt took their handiwork to Charlotte state Senator Herman Moore to ask his help in finding a sponsor. Moore then mentioned the idea to Jones, whom Kuralt had not approached on the assumption that a big-city freshman might not be the ideal proponent, and Jones immediately leapt to the task and eagerly volunteered for the role. Jones then went over the language of Kuralt’s draft with several other doctors, and settled on “preserve the life or health of the mother or the child” as the operative phrase. Jones recruited a veteran Guilford County house member, Charles Phillips, as a cosponsor, while Senator Moore enlisted a fellow Democrat, Cleveland County’s Jack White, to sponsor the measure in that chamber, and by early March the Kuralt-Jones reform bill was ready to be introduced into the North Carolina legislature.
Even before the Jones bill was submitted, word that it was coming reached North Carolina Medical Society (NCMS) president Dr. Edgar T. Beddingfield, Jr., who was dismayed that a reform effort was going to be mounted on behalf of something other than the widely accepted ALI language. Beddingfield had two mutual friends ask Jones to meet with himself and the NCMS executive director and legal counsel before proceeding, and after sitting down with those three men on March 9, Jones readily agreed to go ahead with an ALI bill rather than the one that he and Kuralt had put together. On March 15 Jones, Phillips, and the only female member of the North Carolina house, Nancy Chase, formally introduced it there, and Jack White did likewise in the senate.
Now a second-term state senator, White had thought about possibly introducing an abortion reform bill in 1965 after seeing one or more news magazine stories on abortion, but had decided that it was too late in the session. The 1967 proponents agreed to hold off house action and allow White’s senate committee to move first, and in late March a small, seven-witness hearing took place. Three of the four supportive speakers were doctors who had been recruited by NCMS executive director James T. Barnes, and the fourth was the pastor of Raleigh’s largest Methodist church. The three opposing witnesses, a science professor and two lawyers, had all been contacted by the Roman Catholic diocesan representatives, but neither set of speakers greatly impressed the committee members. Two days later the committee heard briefly from a fourth Roman Catholic opponent, and then sent the bill to the senate floor after agreeing to some tightening of the bill’s medical terms, defeating one major opposition amendment by a 4 to 3 margin, and adding a four-month residency requirement. Several additional modest amendments were agreed to on the senate floor on April 4, and the following day it was formally approved with only two senators voting no.
The reform bill’s successful transit through the state senate had drawn no significant press attention and no public comment by the Diocese of Raleigh, whose bishop, Vincent Waters, presided over a state that was only 1 percent Roman Catholic, the lowest figure in the entire United States. Art Jones was more than happy to proceed with the senate-amended version of his bill, and after asking house leaders to delay action for two weeks to give him time to lobby among his colleagues for support, Jones spoke face-to-face with some seventy-five members of the 120-seat house and came away with a tally of sixty-eight firm commitments. A committee hearing took place on April 20, with NCMS president Beddingfield appearing as one of three affirmative witnesses, and then continued on April 25, with opponents turning out in greater numbers than they had for the senate hearing but nonetheless not offering particularly effective testimony. Two days later the health committee unanimously sent the bill to the house floor, and on May 4 it was called up for action. Art Jones gave a speech on its behalf that some legislative observers judged as one of the most persuasive addresses of the entire session, and a final vote was scheduled for the next day. A number of serious weakening amendments offered by opposition legislators were defeated, and the house then passed the reform bill on a voice vote that onlookers estimated at better than two thirds in support. Three days later the senate ratified that final version by a vote of 46 to 7 and the measure thereby became law.
The North Carolina success drew somewhat less national attention than had Colorado’s cutting-edge achievement. To some observers North Carolina’s law seemed somewhat narrower, in that it included a residency requirement and did not expressly authorize abortions on mental health grounds, yet it also provided for a somewhat more fluid medical process by mandating simply the approval of three doctors, rather than unanimous consent by a standing, three-doctor hospital committee. But politically the North Carolina victory, like the one in Colorado, owed its success to two difficult-to-replicate factors. First, proponents in both states had benefitted tremendously from very adept and perceptive principal sponsors, Dick Lamm and Art Jones, both of whom had happened into their roles without any grand planning on the part of reform advocates. Second, and far more importantly, the legislative reform drives in both states had emerged from seemingly nowhere with remarkable suddenness and had each been able to prepare and introduce a bill before any public attention or threat of controversy was drawn to their efforts. Perhaps particularly in North Carolina Roman Catholic opponents would not have been able to mount a successful opposition campaign no matter how much notice and opportunity to prepare they had been afforded, but it was undeniable that in both of abortion reform’s first two legislative triumphs, swiftness and a large element of surprise had been major and probably decisive advantages.87
The one state where abortion reformers at the beginning of 1967 anticipated relatively good chances of success, but certainly with no element of surprise, was California, where the ongoing efforts of the CCTA had continued to pave the way toward a plausible reform drive. Tony Beilenson had improved his position in the legislature by winning election to the state senate, and the general reapportionment that the state had undergone had produced both a distinctly more liberal state senate and a much-higher than normal freshman presence in the state assembly. Beilenson and his administrative assistant, Alan Charles, refined the 1965 reform bill, enlisted well-respected Riverside Republican Craig Biddle as principal sponsor in the assembly, and recruited a conservative Glendale Republican, John L. Harmer, a longtime Democratic veteran, Alan Short of Stockton, and a liberal Republican freshman, Lewis Sherman of Alameda, as senate cosponsors. In late February the bill was formally introduced, and Beilenson purposefully delayed a Senate Judiciary Committee hearing on the measure until late April so as to be able to privately lobby fellow members of the closely divided committee ahead of time. Going into the April 27 hearing it appeared that chairman Donald Grunsky, a Watsonville Republican, would be the deciding vote on the thirteen-member committee, and Roman Catholic opponents of the bill turned out in force for the evening hearing. Keith Russell, Ned Overstreet, Zad Leavy, Herma Hill Kay, and California Medical Association president Malcolm Todd all joined Beilenson in speaking on behalf of the measure, and it was eleven p.m. before opposing witnesses got their turn. Roman Catholic bishop Alden Bell was joined by two Protestant clergymen appearing on behalf of the Northern California Right to Life League as well as by several Roman Catholic lawyers, including John T. Noonan, Jr., and Richard P. Byrne. The general tone of many of the opposing speakers was highly emotional and their predominant theme was that each and every abortion was an act of murder since a fetus was a human person from the moment of conception onward. When the testimony finally concluded sometime after two a.m. on the morning of April 28, chairman Grunsky voted with the proponents and the Beilenson bill was sent to the senate floor by a razor-thin vote of 7 to 6.
The bill’s opponents were clearly surprised by the committee’s approval, and the following day the senior Roman Catholic prelate in California, James Cardinal McIntyre of Los Angeles, attacked the measure as a “trend away from divine authority.” Initial floor action two days later indicated that the bill possibly although not certainly had the twenty-one votes needed for senate passage, and the careful Beilenson again chose to wait and proceed slowly rather than risk an immediate floor vote. On May 9 the San Francisco Chronicle reported that a new California Poll showed 73 percent popular support for therapeutic reform, up from 65 percent a year earlier, and 67 percent support among Roman Catholics, a jump of sixteen points in one year. Four days later Republican Governor Ronald Reagan, whose support would be necessary to sign any bill into law, said publicly that he did not like the fetal defects provision that was included in the Beilenson measure, and for the first time the governor’s staff spread the word among Republicans that they should not back the bill. Beilenson and Assemblyman Biddle met privately with Reagan, who was noncommittal, but at a May 23 gubernatorial news conference a supportive journalist pressed Reagan to articulate his specific objections to the reform measure. The governor said that removal of the fetal defects clause and reduction of the age at which any intercourse was by definition statutory rape to fifteen were his two requirements for being able to support the measure.
Beilenson briefly pondered his options, and then on May 27 presented his own amendments to bring the bill into line with Reagan’s requirements. On June 6, confident that he had the necessary votes, plus another likely “no” who would switch to “yes” if absolutely necessary, Beilenson brought his amended bill up for a final senate vote and won passage by a margin of 21 to 17. Governor Reagan acknowledged that he would sign the senate-passed version, and the measure went to the assembly with full confidence that it could win comfortable approval there. An assembly committee hearing that was largely a rerun of the senate one quickly took place, and on June 13 the senate measure reached the assembly floor. Then Governor Reagan, whose 1966 campaign managers had just days before been hired as political consultants by the Catholic hierarchy, indicated that he was having second thoughts and that perhaps the bill should be further amended to add a residency requirement. Reagan’s self-contradictory remarks and last-minute timing generated resentment rather than helping the opposition, and later that same day the assembly passed the senate version by a vote of 48 to 30 after beating back by almost equally comfortable margins several opposition attempts to weaken the bill significantly. Two days later Reagan signed it into law, with the new provisions scheduled to take effect some months later, in early November, after the close of the legislative session.88
Knowledgeable observers of the California success gave principal credit for the victory to Tony Beilenson, without whose personal skills the bill almost certainly would not have emerged from the state senate. Careful onlookers also noted that within the legislature “the bill was sold primarily as a means to alleviate the tragic results of rape and incest,” and even Beilenson’s aide and law partner, Alan Charles and Zad Leavy, readily acknowledged that “the Act’s basic intent is to provide relief for women in situations of hardship.” CCTA activists such as Ruth Roemer, as well as Beilenson himself, recognized full well that the California reform triumph, just like the similar new measures in Colorado and North Carolina, would provide legal abortions for less than 5 percent of all women who were seeking them, but in terms of where the national reform movement had stood in December 1966, the achievements of early 1967 in the three states that had registered reform victories were a pleasant and largely surprising success indeed.89
That was especially true when looked at in the context of the many other legislative defeats that had been suffered in addition to the early losses in New York, Arizona, Georgia, and Texas. Lonny Myers’s Illinois group, ICMCA, had taken an essentially neutral stance toward an ALI-style reform bill sponsored by state representative Leland Rayson, but that measure failed to make it out of committee. They and other liberalization proponents had higher hopes for another bill, sponsored by Lake Forest Republican John Henry Kleine, that provided for the appointment of a special Illinois abortion study commission, but that measure was vetoed by Democratic Governor Otto Kerner after being passed by both houses of the state legislature.90 Reform bills had also failed to get out of committee in Minnesota, Michigan, Iowa, Ohio, and Pennsylvania, while in both Missouri and Alabama bills that made it out of committee never progressed further.91 In both Nevada and Maryland reform measures passed the lower house of the legislature but were voted down in the upper chambers, and in Oklahoma a reform bill passed the state house before being tabled in the senate after the governor announced that he would veto it. The Maine state senate passed an ALI measure by a vote of 20 to 12, only to have it voted down in the state house by a margin of 90 to 39, and the Florida state senate also approved a therapeutic bill only to have it expire in the state house.92
The nationwide spate of spring 1967 legislative activity both reflected and influenced ongoing abortion discussions within a wide range of organizations. In mid-May the American Baptist Convention endorsed ALI-style reform, and in mid-June, under continuing pressure from Dorothy Kenyon, the board of the ACLU distinctly strengthened its support for abortion liberalization. Most importantly of all, however, on June 21 the House of Delegates of the American Medical Association formally put the organization of America’s doctors on record as formally endorsing ALI-style therapeutic reform. To date only seven state doctors groups had explicitly backed such liberalization, but in the subsequent three months ten more would move to follow the lead of the national body.93
Even more notable than the AMA’s action, however, was a decidedly more unconventional announcement that the New York Times prominently displayed on its front page: twenty-one New York clergymen, stimulated by Larry Lader’s initial suggestion to Howard Moody eight months earlier, declared that they would provide publicly advertised abortion counseling and abortion referral information to any pregnant woman who cared to contact them. Formally titled the Clergy Consultation Service on Abortion (CCS), the group was not so much an organization as a network, a network organized around a phone number and an answering machine located at Moody’s Judson Memorial Baptist Church on the south side of Washington Square Park in Manhattan’s Greenwich Village. Women who called in would initially be referred to one or another clergyman for a private, face-to-face conversation, and only in that context would a woman actually be given specific information on abortion providers. Many of CCS’s referrals went to doctors in Puerto Rico, but some went to Milan Vuitch in Washington, with whom Lader had been in contact for some months. Others went to a doctor in Pennsylvania, and after some months an additional excellent provider was discovered in New Orleans. Referrals were made only to credible, licensed physicians practicing outside New York, and the CCS volunteers scrupulously avoided any comment on whether they believed their referral work was or was not legal. The initial announcement in the Times had taken place with considerable trepidation, but no prosecutorial initiatives ensued. Substantial numbers of pregnant women, however, did start calling Judson’s special number, and it became clear within the first few weeks of CCS’s operation that the essence of the program—providing referrals for actual, safe abortions—was clearly meeting a tremendous need that neither reform nor repeal advocates—apart from Lader and California’s Pat Maginnis—had ever before directly begun to address. Perhaps just as significant as its tangible provision of a badly needed service, however, was CCS’s open and aboveboard operating style, which conveyed to all who might take notice that abortion on request could hardly be presumed to be an immoral and despicable act if substantial numbers of upstanding clergymen were serving as volunteer middlemen between needy women and legitimate doctors.94
The immediate success of CCS, however, was not the only goal of Lader and his fellow New York activists. John Lassoe continued to coordinate discussions aimed at mounting a renewed New York state legislative effort in 1968, and Lader and Bill Ober continued their conversations about recruiting Wayne Decker or another willing doctor for an abortion test case. Harriet Pilpel sent Decker a full copy of the NYU law student’s essay on the unconstitutionality of abortion statutes which had so impressed her back in April and which so thoroughly rebutted Cyril Means’s notion that no liberty-based constitutional challenge to existing laws was even worth considering. Lader’s hopes of pursuing a test case through the good offices of Knickerbocker Hospital fell through once it became clear that the hospital’s director had had serious second thoughts about the institutional wisdom of joining in such a legally risky enterprise, but Ober introduced Lader to another sympathetic gynecologist, Bernie Nathanson, and Lader pondered whether a test case might be built around a fifteen-year-old New York teenager who was pregnant as a result of being raped by her stepfather.95
But such an extreme and fact-specific case would not speak to Lader and Pilpel’s most basic hope that a constitutionally broad-gauged judicial challenge to existing antiabortion laws could indeed be enunciated, crafted, and filed. For that they would willingly, and at first eagerly, turn to the initial representative of a new and younger generation of liberalization advocates, a generation whose unquestioned inclinations ran toward repeal rather than reform, and—because they had indeed read Griswold while still in law school—toward the federal courts rather than toward state legislatures. The first representative of the new wave truly had still been at NYU Law School when Griswold was decided, but—as Pilpel had immediately recognized when she read his unpublished paper in mid-April—he was undeniably the first person to fully articulate on paper the vision of the future that would become Griswold’s true and remarkable legacy. Estelle Griswold never met Spurgeon LeRoy Lucas, Jr., but if indeed there were children of Griswold, Roy Lucas was certainly the first, and for the next five years he would, for better or worse, indisputably be the most important.