From Reform to Repeal: The Right to Abortion, 1967–1969
Roy Lucas was only twenty-five years old when the initial draft of his law school essay arguing that a woman’s right to choose abortion was a fundamental individual freedom protected by the U.S. Constitution’s guarantee of personal liberty first had such a powerful and uplifting effect on Harriet Pilpel and Larry Lader. A native of Columbia, South Carolina, where his father sold insurance and served as a deacon in a Baptist church, Lucas had graduated from the University of South Carolina in 1963 with a degree in chemical engineering. He had applied for a prestigious Root-Tilden fellowship at New York University’s law school, with the idea of perhaps pursuing a career in patent law, after seeing a bulletin board announcement of the program. A personal interview in Baltimore with an NYU selection committee which included U.S. Circuit Judge Simon E. Sobeloff proved successful, and in September 1963, after attending the August 28 civil rights March on Washington, Lucas began his first year of classes at NYU.
Following an academically successful but otherwise unremarkable school year, Lucas spent the next summer working in the patent law department at Texas Instruments in Dallas, and then returned to New York to begin his second year of classes. The young, very southern-sounding student’s top interest beyond his course work was the burgeoning civil rights revolution, and in early October Lucas and a classmate took an overnight train down to Washington in order to watch U.S. Solicitor General Archibald Cox argue the constitutionality of the newly passed Civil Rights Act of 1964 before the U.S. Supreme Court in two cases from Atlanta and Birmingham.
Decades later Lucas would remember that “the word ‘abortion’ did not enter my vocabulary or mind” until that second year of law school, and when it did, it did not come from a casebook. Shortly before Christmas Lucas’s distraught girlfriend told him that she was pregnant, and Lucas frantically but discreetly started making inquiries about how they might solve this highly unwanted problem. Through one or another NYU faculty member Lucas was given telephone entree to a well-known figure whom he had never before heard of, Alan F. Guttmacher, and sometime in December 1964 Guttmacher explained to his young and unseen caller that he and his girlfriend needed to make plans for a brief holiday trip to San Juan, Puerto Rico, and should call in advance for an appointment with either a Dr. Otero or a Dr. Palmiero, both highly competent, American-trained specialists with whom Guttmacher was acquainted through old Baltimore connections. Lucas followed Guttmacher’s instructions, made contact with the first of the recommended doctors, and flew to San Juan with his girlfriend. The clinic was in a “dingy, alien neighborhood,” and while the procedure itself took place without complications, that did not change the fact that the entire ordeal was “degrading” and “not an uplifting experience” for them both. The “relationship ended because of this,” and “[I] felt very bad about it,” Lucas remembered years later.
That spring, with an eye towards gaining a good deal of public speaking experience, Lucas applied for and won a Rotary Foundation fellowship that would enable him to spend the 1965–1966 academic year at the University of Glasgow in Scotland while devoting much of his actual time to speaking appearances before scores of Rotary Clubs all around England and Scotland. He spent the initial summer working with a German patent lawyer in Stuttgart, where he met a young German woman, Uta Henkel, who soon became a close girlfriend, and in April 1966, just before returning to the United States, Roy and Uta were married in Germany. Lucas spent part of the ensuing summer back in Dallas at Texas Instruments, and part of it working for a New York law firm, Fish and Neave, and then began preparing for his third and final year of classes at NYU Law School.
Before heading to Glasgow, Lucas had already been elected to the staff of the NYU Law Review, but now, rather than return to the law review staff, Lucas decided that he would devote a significant proportion of his third year to another academic option, preparing a major essay as a senior-year project. His topic, one he had thought about while in the U.K., would be the constitutionality of American antiabortion statutes. His primary faculty mentor, Norman Dorsen, did not initially seem especially enthusiastic about Lucas’s chosen topic, and so for formal sponsorship of his independent study Lucas turned to another experienced constitutional scholar who seemed somewhat more receptive, law school dean Robert B. McKay.
The subject was so novel, Lucas told a journalist three years later, that “People thought it was a weird idea. My professors kind of laughed at me, but I went ahead and spent six months at it.” Looking back at his choice of topic some three decades later, Lucas acknowledged that his Puerto Rico experience was no doubt “one motivating factor” in his decision, as was the fact that during his year in the U.K. the British press had been full of reports concerning an ongoing abortion reform debate in the House of Lords. The English debate had resonated with his own feelings about his traumatic trip to Puerto Rico, but even before going to Britain, and especially upon his return, Lucas had been more than a little intrigued by the much-discussed June, 1965, Supreme Court decision in Griswold. During Lucas’s year in Great Britain Robert McKay had been one of a number of legal scholars who had contributed to a special symposium issue of the Michigan Law Review on Griswold, but when Lucas looked at that December 1965 number, the essay that had far and away the greatest impact on him was the contribution by Tom Emerson.
“The first time I ever saw any mention in the literature of the possibility that there may be some constitutional limitations on abortion laws” was in Emerson’s article, Lucas remembered several years later. Come the fall of 1966 Lucas was quite surprised that no one else had yet expanded upon Emerson’s brief suggestion that Griswold’s privacy doctrine might well open the way “for an attack upon significant aspects of the abortion laws,” and he began an intensive effort to read everything he could find, particularly in case law and legal literature, that in any way touched upon abortion. Lucas was much impressed with Larry Lader’s newly published book on the subject, and he also paid full attention to the New York Times’s coverage of the early 1967 legislative debates on reform statutes in Albany and elsewhere. He took special note of how Harriet Pilpel stood out as a repeal supporter who seemed to appreciate the clear potential linkage between Griswold and abortion, and Lucas had even further opportunity to ponder Griswold’s significance in a civil rights seminar that he took with NAACP Legal Defense Fund attorney Robert Carter. Lucas’s primary paper for Carter was a predecision study of a pending Supreme Court case, perhaps the best-named case in American legal history, Loving v. Virginia, where a state criminal statute outlawing interracial marriages was under constitutional challenge in an attack that relied significantly upon Griswold’s celebration of the importance of marriage and that would soon prove successful.1
Lucas made initial contact with Harriet Pilpel even before he completed work on his essay in the spring of 1967, and as Pilpel so pointedly told Cyril Means and Larry Lader in mid-April, she, like Lucas’s NYU professors, was extremely impressed with the persuasive case his paper made that affirmative federal court challenges to the constitutionality of existing state antiabortion statutes might very well succeed. Robert McKay was so impressed with Lucas’s paper that he gave it the highly unusual grade of A+, and Lucas, deeply encouraged by such enthusiastically supportive reactions to his work, resolved to revise and shorten the paper for publication in one or another law review following his June graduation. Fortunate enough to have already been offered assistant professorships in the law schools at both Florida State and the University of Alabama, Lucas decided to accept the latter position and early that summer he and Uta moved to Tuscaloosa, where Roy began teaching summer school and revising the paper.2
By the time he arrived in Tuscaloosa in the summer of 1967, Roy Lucas fully realized that his interest in a federal constitutional challenge to state antiabortion laws was not purely academic. A reform bill was under active but eventually unsuccessful consideration in the Alabama legislature that summer, but Lucas’s first thought upon arriving in Alabama was to explore the possibilities for a declaratory judgment case against the state abortion statute. When Larry Lader wrote Lucas in early August seeking an update on the status of the Alabama reform bill, Lucas told him that he had already written to the three Alabama doctors whose names had appeared among the scores of supportive physicians from across the country who had endorsed Zad Leavy and Herma Hill Kay’s amicus brief in the Shively case in California to see whether they might be interested in helping mount a challenge to the Alabama law. “The test case I am planning to prepare,” Lucas told Lader, “would be a class action by a number of physicians and hospital abortion committee members for a declaratory judgment that the state has no power to interfere in physician-patient decisions concerning the termination of pregnancy.” Revising his NYU paper had increased his confidence in both the substantive and the procedural aspects of such a case, Lucas explained, and he sent Lader both a short, two-page outline of the case strategy that he hoped to discuss with the Alabama doctors and a full copy of his lengthy revised essay.
Although a case would feature high-status physicians as the named plaintiffs, the substantive focus would be upon “the fundamental interests of a woman in marital privacy and personal autonomy in controlling her reproductive processes.” Griswold, Lucas emphasized, “pointedly rested on the broad principle of marital privacy and the physician’s right to advise on the use of contraceptives for the purpose of family planning. It follows, therefore, that state abortion laws may well be found unconstitutional when tested according to the same reasoning.”
In the long revised paper, Lucas again emphasized that abortion ought to be acknowledged as “a fundamental right of marital privacy, human dignity, and personal autonomy reserved to the pregnant woman acting on the advice of a licensed physician,” and that such a right was protected by the “values embodied in the express provisions of the Bill of Rights” and most specifically by an “altogether reasonable application” of Griswold. “The values implicit in the Bill of Rights suggest that the decision to bear or not bear a child is a fundamental individual right not subject to legislative abridgement—particularly in light of Griswold,” Lucas explained. If this perspective was indeed constitutionally plausible, “a frontal attack on the very assumptions of abortion legislation can be made through judicial enforcement of the guarantees of human rights found in the” Bill of Rights. “The state interest in regulating abortion is a subjective judgment of value based upon a belief of a religious character,” and if a constitutional challenge could be properly mounted, the odds were excellent that the U.S. Supreme Court would conclude that “abortion prohibitions violate substantive due process in contravention of values expressed in the Bill of Rights.”3
An enthusiastic Lader immediately cited Lucas’s conclusions in a final unsuccessful effort to convince the director of New York’s small Knickerbocker Hospital to help sponsor a test case, and also invoked it in trying to convince John Lassoe of the Episcopal Diocese that such an effort ought to be welcomed at the church-affiliated St. Luke’s Hospital. Bob Hall of ASA told an interviewer that “some day—probably after many of the state laws have been changed” by legislative reform—“there will be a test case in which the courts will declare all anti-abortion legislation unconstitutional,” but that generating such a case would not be easy: “even when we get a woman willing to see herself on the front pages for months, we’ll need to find a reputable doctor and reputable hospital willing to join her there.” Lucas’s strategy, unlike Hall and Lader’s presumption, would require only willing doctors, and not an actual abortion or a cooperative hospital, but that important legal distinction was not readily appreciated. Hall was certain that “‘abortion on demand’ is just not going to happen in the foreseeable future,” but that as increasing numbers of states gradually adopted reform bills, “eventually they will lead to complete legalization.” California’s Garrett Hardin expressly disagreed with that final sentiment, insisting that “small reforms are the worst enemy of great reforms,” but the major public abortion event of the fall was an implicitly antireform symposium sponsored by the Joseph P. Kennedy, Jr., Foundation and the Harvard Divinity School over three days in mid-September in Washington, D.C.4
Rather grandiosely titled the International Conference on Abortion, the meeting’s tacit purpose was clear enough from its advance agenda that Pat Maginnis and several California colleagues arrived on the first day to publicly picket the proceedings. Some repeal supporters, such as demographer Christopher Tietze, were included among the speakers, and Supreme Court Justice Potter Stewart was among at least one day’s onlookers, but the heavy majority of participants were opposed to liberalization in any form. One Roman Catholic Florida doctor and legislator who had worked energetically on behalf of a reform bill in his state complained that the meeting “was a ‘sell’ job,” and while many journalists recognized the same thing, Newsweek magazine published a two-page story on the symposium and told its readers that “the most surprising aspect of the entire conference was the wide-spread antipathy against abortion itself”5 ASA’s quarterly newsletter quietly noted how one Catholic publication had celebrated the conference as a “significant road-block … thrown in path of” ongoing reform efforts, but new liberalization groups were springing up in a variety of states such as Michigan and preexisting ones in states such as Illinois and Wisconsin were making new efforts to expand.6
In Georgia three Atlanta Unitarians, minister Edgar T. Van Buren, British-born attorney Alan Bonser, and Emory University psychologist Kenneth Anderson, met with state representative Richard Starnes, sponsor of the earlier reform bill, to map out a renewed reform effort in the 1968 legislature, and they soon announced creation of a new proreform group, Georgia Citizens for Hospital Abortions.7 In Connecticut, Mystic attorney Richard M. Bowers, who had been interested in the subject for more than a year, took the lead in creating a new group that soon came to be called the Connecticut League for Abortion Law Reform. Hartford attorney Donald Cantor, who had spoken up on behalf of a nascent reform bill some months earlier after first encountering the subject at a local ACLU symposium, soon joined forces with Bowers, and among those attending the group’s first meeting was Lee Buxton. Both Buxton and Estelle Griswold were soon elected to the new group’s board of directors, but while Buxton now evinced a clear preference for repeal rather than reform, the group as a whole was slow to come to any decisive conclusion on the matter.8
If Newsweek unwittingly had thrown a major bouquet to liberalization opponents with its gullible coverage of the September conference, Time several weeks later featured the first prominent media story that reflected a distinct preference for repeal over reform. “Written by men, anti-abortion laws cannot quell the desperation of women for whom a particular pregnancy is a hateful foreign object,” the story bluntly declared. It rebutted the notion that any significant proportion of women felt “deep guilt” after having abortions, and emphasized that “in fact, most women react with a feeling of great relief.” The story noted the while a heavy majority of Americans endorsed abortions predicated upon a threat to a woman’s health, an even greater proportion opposed abortion being available simply as matter of a woman’s choice. As with other matters involving sex, Time commented, “the surveys suggest that Americans disapprove publicly what they practice privately.”
The Time story went on to say that with regard to the Colorado, North Carolina, and California reform statutes, “the key question is whether limited legislation is any solution,” since “the new laws merely codify what hospitals are already doing” and would provide legal abortions to only a very small percentage of women who wanted one. It noted how one well-known Roman Catholic legal scholar who had spoken at the September conference, Robert F. Drinan, had offered the novel analysis that from his antiabortion perspective, repeal of abortion statutes would be preferable to reform since it would remove the subject from governmental review rather than place the state in the position of expressly approving some abortions while disapproving others. The story then concluded with a final sentence that was explicitly instructive: “The way to deal with the problem forthrightly is on terms that permit the individual, guided by conscience and intelligence, to make a choice unhampered by archaic and hypocritical concepts and statutes.”9
Time’s remarkable piece touched only in passing on one aspect of the debate that more and more reformers and journalists were beginning to focus upon: how very few additional legal abortions actually were being performed pursuant to the new reform laws. California’s revised statute would not take effect until November, but in both North Carolina and Colorado only about twenty-five legal abortions a month were taking place. “Hospitals are definitely leaning over backward to keep the number down,” reform bill sponsor Richard Lamm told Larry Lader, and mental health ones were proving more difficult to obtain than before the new law had been passed. Few hospitals outside of Denver were performing any abortions, and even in the capital city most abortions were taking place at just a few facilities. Denver General Hospital was accounting for more than one third of all abortions in the state, with two thirds of those taking place on psychiatric grounds, but even Denver General’s three-doctor abortion committee was rejecting more than 20 percent of women who provided a psychiatric endorsement of their request. When Great Britain’s new abortion statute was formally approved in late October, some American press accounts noted that it was distinctly more liberal than the Colorado law, but within medical circles the actual advent of the new reform measures, while eliminating much of the previous worry about potential legal vulnerability, also served to further highlight the inherently standardless charade involved in doctors deciding which women’s “mental health” was sufficiently threatened by an unwanted pregnancy and which women’s were not. “To get around the law is no substitute for bringing about a change in the law,” one unhappy California psychiatrist wrote in his discipline’s principal national journal, and gradually more and more signs began to appear that the passage of reform bills might actually serve to illuminate the inadequacy of therapeutic reform and the preferability of the seemingly far more radical step of repeal.10
Time’s highlighting of Robert Drinan’s unique and intriguing antiabortion argument for repeal rather than reform contributed significantly to a burst of reflective rethinking in some Roman Catholic intellectual circles. The Jesuit magazine America, in a prominent editorial introducing a special issue on abortion that included a piece by Drinan, asked “should the Catholic Church … adopt a more flexible attitude and engage actively in abortion law reform?” and without pause answered yes, “We think it should.” The journal explained its surprising position by emphasizing that “changes are going to come (and come quickly) whether we oppose them or not,” and even a much more hard-line contributor, Fordham law professor Robert Byrn, pessimistically estimated that some twenty states would soon adopt reform statutes and that three years hence “1970 will see … the abortion movement triumphant.” Another antiabortion Catholic law professor extended America’s analysis and concluded that since abortions within the first thirteen weeks of pregnancy involved only “an organism which is striving to develop the form of a human being,” rather than “an identifiable human organism” as was the case with more mature fetuses, such early procedures could indeed be tolerated. Drinan, offering a fuller explanation of his preference in another essay rather quixotically titled “The Right of the Fetus to Be Born,” maintained that “repeal would not mean that the state approves of abortion but only that it declines to regulate it.” The moral imperative, he explained, was “to keep the state out of the business of decreeing who is to be born.” The number of abortion essays appearing in a wide range of religious, legal, and medical journals continued to increase, but nowhere was the evidence of the growing move toward liberalization more marked than in such Roman Catholic contributions.11
The intellectual ferment was of course not all-controlling, however, and in mid-October of 1967, when idiosyncratic abortion activist Bill Baird finally stood trial for his April arrest at Boston University, Massachusetts Superior Court Judge Donald B. Macaulay immediately pronounced Baird guilty of improperly distributing contraceptive materials after a proceeding that lasted less than two hours. Baird’s student supporters had publicly denounced Planned Parenthood’s lack of interest in his case and turned out more than two hundred strong for the hearing, where Baird, seeking a decision on the constitutionality of the Massachusetts statute, waived a jury trial and presented no defense witnesses to rebut anything that police lieutenant Joseph Jordan said in response to questions from assistant district attorney Joseph R. Nolan. Baird’s volunteer lawyer, Joseph Balliro, cross-examined Jordan and sought to convince Macaulay that the Massachusetts statute was unconstitutional, but the judge was unpersuaded. He did agree to delay Baird’s sentencing until Baird’s appeal could be heard by the Massachusetts Supreme Judicial Court, and Baird unsurprisingly was unfazed by his conviction. “I know I will win on appeal,” he told journalists, only some of whom publicized his declaration that he was actively referring pregnant women to cooperative American doctors for illegal abortions. “I know the law won’t have a snowball’s chance in hell of being declared constitutional.”12
Another significant but much less publicized call for repeal of reproductive controls came at the second annual convention of the National Organization for Women (NOW) in mid-November of 1967. Founded just a year earlier, NOW was still a low-visibility group in the national press, and until well-known author Betty Friedan pressed the issue of endorsing abortion law repeal at the 1967 meeting, NOW had not previously addressed the issue. Friedan’s effort succeeded, but only at the cost of profoundly alienating a significant number of members who, while not necessarily antiabortion, did not believe that the issue had to be addressed by a women’s rights organization. Many of the women who left NOW over this disagreement several months later created a new group, the Women’s Equity Action League (WEAL), but national NOW did not follow up on its endorsement of repeal by taking any active role in legislative efforts or potential test case discussions.13
More important than the national NOW repeal resolution was the involvement of some NOW members in local-level liberalization efforts, and nowhere was that more significantly the case than in New York, where Long Island housewife Ruth P. Cusack, who lived in the home district of state Assembly Republican Minority Leader Perry B. Duryea, quickly emerged as the most influential lobbyist on behalf of a 1968 legislative effort. Cusack had recently moved to New York from California, where her initial interest in liberalization had been stimulated by news of Garrett Hardin’s unprecedented public lectures in favor of repeal. Hardin had introduced Cusack to Pat Maginnis and her colleagues in SHA, and even in 1965 Cusack had written to her assemblyman, former reform bill sponsor John T. Knox, to oppose Beilenson’s therapeutic measure on the grounds that its passage “would benefit very few women” and might “lead to complacency, making it difficult to arrive at the only decent solution to the matter of abortion, which is the repeal of any laws whatsoever which prevent any woman who wants one from obtaining an abortion.” She had told Knox that reform failed to acknowledge “the right of a woman to own her own body, the right to decide for herself if and when she is to bear a child,” and she had pointed out how “it is degrading for a woman to have to petition a committee for the right to receive simple medical treatment to terminate an unwanted pregnancy, almost as degrading as forcing a woman to obtain this service illegally.” The “only humane approach,” Cusack had declared, “is for a woman to be able to receive an abortion from a physician at her own request, quickly, quietly, and inexpensively.”
By late 1967 Cusack was voicing similar sentiments to both Duryea and 1967 reform bill sponsor Al Blumenthal as she tried to convince New York liberalization backers that repeal was infinitely preferable to reform. Cusack advised one friend that “abortion should be a civil right,” and she privately explained that while she “was upset to find the ASA so conservative,” the discovery had “strengthened my resolve to work for repeal.” In one letter to fellow Unitarians, Cusack noted that “abortion on request … permits freedom of choice, a cherished American principle,” and emphasized that Margaret Sanger’s fifty-year-old “fight for a woman’s right to birth control … will not be won until every method of birth control, including abortion, is available to every woman who wants it.” Cusack wrote to every legislator in the state, describing abortion as “a private decision between physician and patient” and contending that “there is no legal justification for making abortion a crime any more than there would be legal justification for declaring it a crime to use birth control pills or condoms.” She asked both Blumenthal and Duryea to champion repeal rather than reform in the 1968 legislature, and while Blumenthal was noncommittal, Duryea, who at first may not have fully understood the distinction, told Cusack that “I totally agree with your position.” ASA commissioned a statewide public opinion survey, which found that 25 percent of New Yorkers said they knew at least one woman who had had an abortion and which registered a whopping 75 percent support for therapeutic reform. Even among Roman Catholics who said that religion was very important to them, 63 percent endorsed therapeutic liberalization, and only 17 percent of the entire sample opposed any changes in the law.14
The New York Times, extending its support of liberalization beyond the editorial page, opened 1968 with a prominent overview story informing readers that “many more states” would soon follow the abortion reform lead of Colorado, North Carolina, and California. Robert McCoy of Minnesota’s liberalization group stated that “It’s really remarkable how much the climate of public opinion has changed in just a few years,” and he added that “I wouldn’t be surprised if several states including Minnesota soon repealed their abortion laws.” The story also highlighted the ongoing referral work being done by Howard Moody’s group and Larry Lader, and cited Al Blumenthal, who had just reintroduced a reform bill, as estimating that the prospects for passage were “much improved.” The very next day New York Governor Nelson Rockefeller announced his support for liberalization, and the Times gave his statement page-one coverage and also prominently cited the results of the ASA poll. A spokesman for the Roman Catholic Archdiocese of New York, Monsignor William F. McManus, requested time to reply to one television station’s endorsement of liberalization and used his appearance to object to any type of therapeutic reform in the strongest possible terms. “If feticide is carried out for the prevention of defect, would not infanticide be a logical and medically preferable consequence? Errors in prenatal diagnosis, dangers to the mother, and sacrifice of normal fetuses would be avoided” if infant-killing were adopted in place of abortion.15
Sensing a need to generate additional legislative support in advance of any serious consideration of Blumenthal’s measure, Governor Rockefeller quickly followed up on his endorsement of liberalization by appointing just the sort of special study commission that Blumenthal himself had recommended a year earlier. Of the eleven members, the four Roman Catholics, who included Monsignor McManus and Fordham law professor Robert Byrn, were publicly presumed to be liberalization opponents, while at least another six, including Alan Guttmacher, Cyril Means, and demographer Christopher Tietze, were all believed to support at least therapeutic reform.
The appointment of what was formally called the Governor’s Select Committee to Review the State’s Abortion Law significantly fueled the already burgeoning private debate amongst liberalization backers over the relative merits of reform versus repeal. Chicago’s Lonny Myers had just written to ASA president Bob Hall and ASA’s board members, including Alan Guttmacher and Larry Lader, to demand that ASA’s published literature at least acknowledge that repeal was a plausible option. Bob Hall responded organizationally by maintaining that “The contention that abortion is an individual right, though shared by most of us who work in this field, cannot be officially expressed by a tax-exempt education group” such as ASA. Larry Lader, whose board term was expiring, told Myers that Hall in a certain way was quite correct, since “ASA’s tax-free status makes it generally ineffective.” He added that “I think we will have to form an organization for complete legalization here when enough people can get the time.” Two additional board members, Lader’s doctor friend Bill Ober and prominent ethicist Joseph Fletcher, similarly told Myers that they essentially agreed with her. “Nobody should be compelled to bear a child against her will,” Fletcher responded, but “most of the ASA people are much more conservative ethically, especially the medical members.” Ober concurred that “abortion is a private matter between the woman and her doctor,” but the far more influential Guttmacher replied to Myers’s letter with much the same message he had been voicing for many years. In his role on Rockefeller’s commission, Guttmacher explained, “I shall not attempt to repeal the statute,” because “Such an attempt would be impractical and the people are not ready for it.” He would “try for something broader than the ALI,” however, by proposing that abortions also be allowed for all women with three or more children, for all women over the age of forty, for all unmarried girls under eighteen, and in all situations where the parents’ circumstances “would create an adverse environment for a child.” Guttmacher did not explain why he perceived such a significant distinction between simple repeal and such a potentially very liberal list of allowable exceptions, but he nonetheless remained a surprising holdout from the rapidly growing sentiment for repeal.16
In early February 1968 the Assembly Codes Committee voted 12 to 4 to send Blumenthal’s reform bill to the floor, but amid journalistic prognostications that the measure’s chances were “dubious, at best,” Blumenthal announced that floor action would be delayed until after Rockefeller’s special commission concluded its study and submitted its report. Privately Blumenthal told repeal advocate Ruth Cusack that “a majority is not now obtainable for the view you espouse” and that “the only feasible approach is an abortion law which would permit abortions for medical indications and for rape and incest.” Liberalization proponents announced creation of a new umbrella-group coalition, Organizations for Abortion Law Reform, which included supporters of repeal as well as reform, and in late February Rockefeller’s commission held a day long hearing in New York City at which a long list of witnesses, including Cusack and Harriet Pilpel, appeared to testify.17
Four weeks later, by the surprisingly large margin of 8 to 3, the commission submitted to the governor a fifty-page majority report calling for the enactment of a liberalized statute reaching somewhat beyond the standard ALI provisions. The one Roman Catholic woman on the panel had joined with the majority, and Rockefeller announced that he “concurred fully” with the recommendations, although he did decline to endorse one specific, Guttmacher-style provision allowing abortions for women who already had four or more children. The three committee dissenters submitted a separate statement far longer than the majority report, and a spokesman for the state’s Roman Catholic bishops denounced the recommendations as “shocking and appalling.” Howard Moody’s Clergy Consultation Service expressed “deep disappointment” that the majority recommendations went no further than they did, but four days after the report was submitted a hopeful Blumenthal proceeded to a floor debate and roll call vote on his reform bill in the state assembly. Proponents had believed they had three or four votes more than necessary, but once the roll call itself got underway, several anticipated supporters unexpectedly voted no and Blumenthal interrupted the tally and moved to recommit. “We had four votes we needed and they backed out,” Blumenthal candidly told Albany reporters. “It’s dead for this year. We’ll absolutely try again next year.” His most consistent supporter, the New York Times, termed the defeat “more disappointing” than in 1967 but confidently predicted that “the climate for reform should continue to improve.”18
While the New York measure had been awaiting that frustrating final outcome, reform proponents in Georgia had mounted a far more successful 1968 reprise of their previous year’s campaign. Senate Judiciary Committee Chairman Robert H. Smalley, Jr., who had not supported Representative Richard L. Starnes’s 1967 ALI-style bill, now took the lead in revising Starnes’s measure in close collaboration with Medical Association of Georgia staff members Jim Moffett and John L. Moore. They settled on a four-month residency requirement plus a provision mandating that abortions could take place only in certain better-equipped hospitals that were approved by the nationwide Joint Commission on Accreditation of Hospitals (JCAH), and in early January Smalley himself introduced the revised bill. A new opposition group which had been formed by two Catholic housewives, the “Concerned Committed Citizens,” spoke out against the bill and told journalists they were unhappy with the “defeatist” attitude of Georgia’s Roman Catholic hierarchy. No diocesan spokesman was among twenty-one opponents who testified against the bill at a January 16 hearing, and while a number of prominent doctors, including W. Newton Long and Robert Hatcher, spoke on behalf of the measure, the most conspicuous opponent was Atlanta attorney Ferdinand Buckley. Two days after the hearing Smalley’s committee endorsed the bill on a vote of 5 to 2, and two weeks later in an initial floor vote the full senate approved the measure by a tally of 33 to 17. The Georgia house made some slight changes in the bill during February, and then on February 26 both the senate, by 39 to 11, and the house, by the overwhelming margin of 144 to 11, passed a final version. Georgia’s notoriously segregationist governor, Lester Maddox, had indicated little interest in the issue, and while both Atlanta newspapers encouraged him to sign the bill, Maddox took no action whatsoever and hence on April 15 the Georgia reform statute became law without his signature.19
“Emotionalism was strikingly absent” from the 1968 Georgia debate, a thorough contemporaneous study accurately concluded, and neither the passage of Georgia’s new law nor the subsequent approval of a similar ALI-style reform measure in Maryland received anywhere near the amount of national notice that had been accorded the 1967 reform successes in Colorado, North Carolina, and California. In Florida and Hawaii reform bills failed to get out of committee, but since many state’s legislatures met only biennially, 1968 was a far quieter year legislatively than 1967. In Connecticut a legislative study commission announced that it would recommend reform to the 1969 legislature, and in New Jersey, where local liberalization groups had sprung up in both Princeton and Plainfield, the state medical society voiced its backing for therapeutic reform. In Texas Dr. Hugh Savage had continued his efforts to win firm Texas Medical Association (TMA) backing for a 1969 reform bill, and TMA’s 1968 annual meeting decided to take a mail poll of the full membership in order to determine whether the organization would indeed endorse reform.20
In California, liberalization advocates held a statewide conference on abortion in Santa Barbara in February, a meeting that clearly reflected how passage of the Beilenson reform bill had dramatically narrowed the differences that previously had separated reformers from supporters of repeal. CCTA, the Sunnen-funded reform organization, had essentially gone into eclipse following passage of the 1967 bill, and the exceedingly modest impact of the new law was leading more and more reformers to conclude that repeal indeed should be pursued. The two leading California attorneys, Zad Leavy and Norma Zarky, had both thought about mounting a potential test case, but as Zarky indicated at the Santa Barbara conference, it was presumed that some sort of charges against a doctor, either by a local prosecutor or by the state Board of Medical Examiners, would be needed to set such a case in motion. The board was still administratively pursuing its 1966 charges against J. Paul Shively and his colleagues over their earlier rubella abortions, and Zarky bluntly told the Santa Barbara meeting that “a court case is a gamble and I do not think this movement should hinge on a gamble.” Garrett Hardin and Pat Maginnis both suggested that sponsorship of a 1970 statewide popular vote on a repeal initiative should be considered, and CCTA lent its support to that idea while also midwifing the creation of a Los Angeles-based Clergy Consultation Service referral group modeled on Howard Moody’s success in New York.21
Joseph Sunnen had decided to create a repeal advocacy group, called the Nevada Committee for the Rights of Women, in a neighboring state where legislative passage of a 1969 repeal bill was thought to be possible, and with funds from Sunnen channeled through CCTA, the Nevada group was in operation by late May. New external funding was also being sought by ASA, which was primarily being supported by two members of the Rockefeller family and by heiress Cordelia Scaife May, but ASA’s lack of “an aggressive program” led several foundations to demur. One significant ASA contributor, idiosyncratic liberal millionaire Stewart Mott, argued angrily with Bob Hall over ASA’s relative moderation and strenuously objected to the organization’s heavy investment in an upcoming fall conference on abortion at a Virginia resort. Mott dropped his support entirely, but Hall maintained his commitment to ASA’s restricted role, even while telling reporters that he personally favored repeal and hoped that “the Supreme Court will declare all these laws unconstitutional.”22
In late March 1968 the American Civil Liberties Union further strengthened its endorsement of liberalization by additionally declaring that “a woman has a right to have an abortion … prior to the viability of the fetus,” and six weeks later the American College of Obstetricians and Gynecologists endorsed extensive liberalization.23 Much more importantly, however, in late May Lonny Myers’s Chicago group, ICMCA, formally endorsed Myers’s recommendation that initial steps be taken to create a new nationwide organization to bring together all backers of abortion law repeal. Myers envisioned holding a founding conference in Chicago sometime the following winter, and by mid-July, thanks to the munificence of two Chicago businessmen, the nascent and as yet unnamed national organization had two staff members planning the winter conference. Two weeks later Myers went to New York to meet several of the activists there and was pleased to have Larry Lader remind her that he had suggested the idea of creating just such a national repeal organization to her in a letter six months earlier. They enthusiastically agreed to join forces in assembling the Chicago conference, and quickly recruited California’s Garrett Hardin to provide further geographical balance among the meeting’s top sponsors.24
Lader suggested to Myers and Hardin that they call their new organization the National Association for Repeal of Abortion Laws (NARAL), but his overall outlook on their prospects was not optimistic. “Experience shows that getting a bill through a state legislature to repeal all laws is an agonizing and possibly fruitless procedure.” Hence “the main attack” should “be through the courts,” but while “a few of us have worked on this a long time,” we “have still failed to get a prominent gynecologist in an established hospital to launch such a case.” As he had learned from his and Bill Ober’s experience with Knickerbocker Hospital, “The key question is whether it must be done in a hospital or whether a doctor in his office provides a reasonable framework.” Lader doubted the latter option, and thus “I am still at a loss as to how to find the gynecologist and hospital to do this.” Therefore “the only practical immediate program I see is an extension of the clergymen’s committees and referral services,” which required significant work, especially with regard to identifying willing and competent physicians. Lader’s favorite doctor, Milan Vuitch, had been raided and arrested by Washington, D.C., detectives four months earlier, and although Vuitch could shift his practice between offices in Maryland and D.C., many of the New York clergy referrals began to be directed to a physician in New Orleans, while Lader sent others to a group of providers in the Riverdale section in the Bronx. The New York activists, like those in California, no longer had any doubts about the utter inadequacy of reform laws; as CCS coordinator Howard Moody and his chief administrative aide, Arlene Carmen, frankly put it, “our day-to-day work taught us how few women wanted abortions for the reasons most liberals conceded were justifiable.”25
By mid-1968 even the mainstream press was beginning to question the value of therapeutic statutes like the one in Colorado, where the New York Times reported a grand total of only 289 legal abortions had been performed during its first year on the books. Reform bill sponsor Dick Lamm indicated that he was extremely unhappy at how conservative doctors and hospitals had been in implementing the new law, but Dr. Myron C. Waddell, a former president of the Colorado State Medical Society, told one reporter that “It’s working beautifully.” The institutional review procedure mandated by the law, he explained, has “given real stature to the hospital committees; the committee members have the final word, and they call the shots as they see them.” Needless to say, this was exactly the medical attitude that repeal proponents wanted to free female abortion applicants from having to experience.26
Larry Lader’s utter pessimism about the prospects for initiating a test case that could lead to a successful voiding of existing statutes was about to undergo a friendly and most welcome challenge, however. Roy Lucas had spent an interesting twelve months teaching law in Alabama, and while he had had no success in persuading any of the state’s leading gynecologists to become voluntary test case plaintiffs, he had had his NYU Law School paper accepted for publication in the June 1968 issue of the North Carolina Law Review and had gotten some initial real-world legal experience. Quite curious about the newly emerging field of students’ rights cases, Lucas had driven down to Montgomery to watch one particular case contesting the expulsion of a student newspaper editor from Alabama’s Troy State University be tried before nationally known U.S. District Judge Frank M. Johnson. The volunteer attorney representing the student, Morris Dees, was one of the small number of Alabama lawyers working with the ACLU, and after Lucas introduced himself and expressed his interest, Dees later graciously offered to allow Lucas to handle the case when the university unsuccessfully appealed an unfavorable decision to the U.S. Court of Appeals. It was Lucas’s first courtroom experience, and while Dees believed that the ACLU’s litigation priorities needed some reordering, he mentioned Lucas’s interest in students’ rights issues to ACLU southern regional director Charles “Chuck” Morgan. Through Morgan’s contacts Lucas ended up spending a good part of the spring of 1968 writing an amicus brief on behalf of the U.S. National Student Association for an important Supreme Court case, Tinker v. Des Moines Independent Community School District, which would be argued that coming fall.
By the end of the spring Lucas was hoping to find some foundation funding for a book-length study of student rights and academic freedom cases, but the widespread discussion that had sprung up around his abortion article even before its actual publication resulted in an unforseen grant offer: Bob Hall’s ASA, which had already given Cyril Means financial support for a historical inquiry into the origins of American antiabortion laws, asked Lucas if he would devote the first half of his summer to preparing a model court brief for just the sort of declaratory judgment case challenging the constitutionality of abortion statutes that he had outlined in his article. Lucas eagerly accepted and set to work, and just several weeks later he was presented with yet another attractive opportunity: one of the New York foundations he had approached about his students’ rights work, the Twentieth Century Fund, invited him to join its staff as a program officer. Lucas had presumed he would remain a law professor, perhaps somewhere other than Tuscaloosa, until some recent conversations with Dees had led him to ponder Dees’s idea that another liberal litigation group should be created to handle issues such as economic indigency and educational rights that were not being fully addressed by the ACLU. Dees was about to have the financial wherewithal to make his idea a reality, for prior to turning back to the practice of law, he had created a phenomenally successful mail-order cookbook company that he now was in the process of selling to the Times-Mirror Corporation for some six million dollars. Once the sale was concluded, a new litigation institute could become a reality, and an interim New York base for Lucas at a well-established public policy foundation would supply a perfect lead-in for the eventual opening of a New York office for such an institute. Lucas immediately accepted the Twentieth Century Fund offer, and set to work finishing the model abortion brief for ASA before packing up to move from Tuscaloosa to New York.27
In early July Lucas sent copies of the final draft of a 106-page model brief to both ASA and to ACLU legal director Mel Wulf. Eleanor Holmes Norton, Wulf’s deputy, had suggested that the ACLU look into the possibility of an abortion case even before she had read an advance copy of Lucas’s article, but perusing it led her to renew her request that the ACLU approach Hugh Hefner’s Playboy Foundation for financial backing. “Are there some bunnies we can get who have particular influence with management?” Norton jokingly asked. Wulf too was very excited about Lucas’s “really first-class” constitutional analysis, and even before Lucas first arrived in New York in mid-July, Wulf explicitly asked him if he would be willing to take charge of organizing a number of cases against different states’ abortion statutes. Lucas responded enthusiastically, telling Wulf that the new brief could serve “as a working model for cases to make America free for abortionists.”
In a cover memo to ASA, Lucas explained that declaratory judgment cases could raise the fundamental issue of the unconstitutionality of antiabortion statutes “without the risk of a physician’s license, without embarrassment to patients, and without the emotion-charged clamor too often brought on by opposition to legislative reform.” Since by federal statute such constitutional challenges to state laws could be heard by special three-judge district courts, whose decisions were then directly reviewable by the U.S. Supreme Court, such cases also reduced the amount of time and money that normally would be required for an initial district court decision and then intermediate review by one of the federal circuit courts of appeal. Such a condensed timetable would allow for “a final decision in slightly more than two years after the suit is filed,” Lucas explained.
Substantively, such a case would allege that certain crucial terms in abortion laws, such as “life” and “health,” were so inherently imprecise as to make those statutes void and unconstitutional on grounds of vagueness. More significantly, the suit would also contend that the First Amendment’s “freedom of association includes the physician-patient relationship, and that treatment of the patient is a constitutionally protected feature of this relationship unless the state can show an overriding interest.” Additionally, “a patient has a fundamental right to regulate the size of her family,” a right that “is a corollary of the right to marital privacy” enshrined in Griswold.
In mid-July, just after arriving in New York from Alabama and just before flying to Europe to see his wife’s family, Lucas met with Mel Wulf, Harriet Pilpel, and Bob Hall and Jimmye Kimmey of ASA to discuss preparation of an actual declaratory test case. While all agreed that Lucas’s model brief would be the basis for the suit, the group told Lucas “that the brief should emphasize more strongly the rights-of-the-physician argument.” Everyone concurred that they needed the benefit of Cyril Means’s ongoing work into the history of abortion statutes, but the major focus of discussion was on where an initial test case should be brought, and particularly on whether some reform statute should be challenged in addition to one or more cases against traditional antiabortion laws. After considerable exchange they decided that the first case would be brought against New York’s fairly representative statute, and that “Dr. Hall will get a prestigious group of M.D.’s … to act as plaintiffs as well as women who have been denied abortions in hospitals. We have to decide what kind of affidavits we want from the plaintiffs.” Getting these necessities squared away would certainly take at least several months, but by sometime late in 1968 or early in 1969, the small group agreed, a constitutional challenge that would probably implicate every antiabortion statute in America ought to be underway.28
In late July the hopes of many progressive American Roman Catholics for a clear signal of doctrinal moderation on matters of sexuality and reproduction were thoroughly dashed when the Vatican released a new papal encyclical staunchly reiterating the church’s hard-line opposition to any and all forms of “artificial” birth control. Demographic studies had continued to show that more and more Roman Catholic American women were forsaking traditional church teachings in their own private reproductive choices, with one survey indicating that the proportion of Catholic women using diaphragms, the pill, or some other “artificial” method was now well over 50 percent and indeed approaching two thirds.29
But litigation developments would remain unaffected by such doctrinal disappointments, and just several days later a California Superior Court judge fully vindicated Dr. J. Paul Shively’s effort to dismiss the state Board of Medical Examiners’ ongoing effort to administratively discipline him for the rubella abortions he had performed four years earlier. Shively, Judge Andrew J. Eyman concluded, had “acted in good faith in accordance with the practices and procedures recognized and approved by those reasonably skilled in his profession.” The board declared that it would appeal its loss to the California Supreme Court and continue its similar proceedings against Shively’s colleagues, but a potentially even more significant legal showdown was looming in California’s high court over a criminal conviction of a well-known Beverly Hills gynecologist, Leon P. Belous, who had been found guilty of referring a distraught pregnant college student to a Mexican doctor who had moved his abortion practice into southern California even though he lacked an American medical license.
Leon Belous had been an active although far from central member of CCTA, the Sunnen-sponsored reform group, even before his August 1966 indictment, but none of his abortion reform colleagues knew of his unpublicized criminal predicament until Zad Leavy by chance happened to walk into his actual trial in mid-January of 1967. Belous had practiced medicine in California for more than thirty-five years, and while many female liberalization backers were extremely supportive when word of his trial—and conviction—first spread among abortion activists, most reform-minded physicians had far more ambivalent feelings. Many were not troubled by their belief that Belous himself had quietly been doing significant numbers of abortions for many years, but almost all believed that the particular circumstance in which he was arrested was one in which he was receiving kickbacks from the practitioner to whom he was making the referrals.
Leavy himself had handled the initial appeal of Belous’s conviction to a three-judge panel of the Second District Court of Appeals, but the appellate panel rejected Leavy’s attempt to invoke Griswold by saying simply that the pregnant student whom Belous referred had been unmarried. The panel clearly read the trial evidence as showing that Belous did indeed receive kickbacks for such referrals, and affirmed his conviction without further ado. Belous engaged two well-known California civil rights attorneys, A. L. Wirin and Fred Okrand, to quarterback his appeal to the California Supreme Court, and the southern California ACLU affiliate swiftly asked Norma Zarky to prepare an amicus brief on their behalf. Belous’s conviction had taken place prior to the enactment of the Beilenson reform bill, but the limited provisions of the new law offered Belous no legal shelter and in no way altered the basic constitutional arguments that could again be made on his behalf in this next appeal. The California activists consequently concluded that Belous, rather than Shively, might now be the best vehicle for confronting California’s high court with the essential issue of the underlying constitutionality of antiabortion statutes, and thus CCTA’s leadership put aside its earlier ambivalence and agreed to lend a prestigious hand on Belous’s behalf.
Los Angeles attorney Charles T. Munger, an important figure in California legal circles and an unobstrusive financial supporter of both CCTA and the Los Angeles clergy referral service, similarly recognized that Belous could well be a crucial case. Along with his extremely wealthy friends and investment partners, Warren and Susan Buffett of Omaha, Nebraska, Munger volunteered to finance and otherwise facilitate a major amicus effort by CCTA, prominent doctors, and well-known attorneys. Zad Leavy would prepare another brief along the lines of his landmark 1966 contribution at an earlier stage in Shively, and CCTA, through Munger’s good offices, would also engage one of the most prestigious attorneys in the state, former California bar association president Burnham Enersen, to offer the state supreme court oral argument on behalf of the amici supporting Dr. Belous’s constitutional claims. “We need the establishment,” Munger straightforwardly told Leavy in explaining his carefully conceived strategy. In early October the high court scheduled oral argument of Belous’s appeal for early 1969, and the California attorneys began drafting briefs that had some chance of spawning abortion law liberalization that might reach far beyond the 1967 therapeutic reforms.30
With Roy Lucas off in Europe and then busy getting settled in at the Twentieth Century Fund, two months passed without any progress toward the planned test case. New York activist Ruth Cusack, now the chairperson of an abortion committee created by the New York chapter of NOW, was busy investigating the possibilities for a repeal rather than a reform bill in the 1969 session of the New York legislature, and in August of 1968 she succeeded in recruiting a Republican assemblywoman from Ithaca whom she had first met at a NOW meeting at the home of Betty Friedan, Constance E. Cook, as a willing sponsor of a 1969 repeal bill. A six-year veteran of the legislature and a graduate of Cornell Law School, the forty-nine-year-old Cook was well-respected in Albany, and when Cusack informed Republican assembly leader Perry Duryea of this new development, Duryea answered that “I feel confident that I could support a repealer introduced” by Cook and volunteered “to assist in any way possible.” Cusack and her colleagues lined up Manhattan assemblyman Franz Leichter as a second sponsor of the repeal measure, and turned their efforts toward attempting to persuade Al Blumenthal not to reintroduce his reform bill in the upcoming session so as to leave the field clear for an all-out battle for repeal.31
In mid-October Lucas and his colleagues on what they had come to call the “Ad Hoc Test Case Committee” finally turned their attention to the litigation plans that had been left hanging since their decisive meeting in July. Hall and ASA had not yet firmly recruited any M.D. or patient plaintiffs, and while Lucas had considered the possibility that they might wait until a California decision was issued, after a little reflection he decided that they had best proceed very early in 1969 so that initial argument in the New York case could take place in advance of any potentially unfavorable outcome in Belous. He believed the likelihood of “great success” in the declaratory case was “very high,” but the most serious obstacle within the small New York group was Cyril Means’s continuing insistence that no Griswold-style constitutional challenge to abortion statutes had any credible chance of success. Means’s lengthy inquiry into the history of New York’s antiabortion statute had convinced him that the sole legislative purpose for enacting the nineteenth-century abortion ban had been dire concern about the dangers that the procedure entailed for women’s lives and health in that medically unsophisticated era. Means zealously believed that with the twentieth-century advent of medical knowledge that made abortion extremely safe when carried out by a knowledgeable practitioner in sterile surroundings, antiabortion statutes that had been legitimate in their original day and age had become unconstitutional as the factual predicate motivating their enactment had evaporated. “Judges are much more likely to accept a historical argument” than any privacy oriented reasoning that a woman’s individual choice was a fundamental liberty. Thus it was “impossible” for Means to concur in Lucas’s brief, and he urged the test case committee to substitute his historical argument for “the to us obvious proposition that constitutional wisdom was born with Harriet Pilpel, Roy Lucas, et al.”32
Lucas and his colleagues brushed aside Means’s idiosyncratic contentions and pressed ahead with their plans. Thoughts of preparing an additional amicus brief for Belous were put aside after an initial draft of Norma Zarky’s planned submission easily convinced both Lucas and Mel Wulf that the essential constitutional claims were already in good hands, and in early November, just after Richard M. Nixon’s hard-fought presidential election victory over Hubert H. Humphrey, Lucas sketched out a full game plan for the New York case. An early 1969 filing would generate an initial three-judge panel decision by late summer or early fall. Review by the U.S. Supreme Court then would take place sometime in 1970, with a decision being issued no later than the spring of 1971. Nixon’s victory gave Lucas serious concern, for “at present there is a delicate balance” on the high court which could easily change for the worse if Nixon was presented with the opportunity to name one or more new justices to seats vacated because of death or retirement. Lucas believed that they might very well have a majority receptive to their case on the present court, but Nixon’s victory meant that time was of the essence. If the New York case did not reach the high court until 1971, Lucas warned his colleagues, their prospects might be endangered, for “Douglas and Harlan may not last that long. They are two of the principal figures upon whom we are depending, but they are also two of the oldest.”33
In mid-November virtually all professional supporters of abortion law liberalization gathered for ASA’s long-planned International Conference in Hot Springs, Virginia. Just the week before, both national Planned Parenthood (PPFA) and the American Public Health Association (APHA) publicly endorsed quasi-repeal resolutions, with the APHA statement speaking of a woman’s choice as a “personal right.” The New York Times noted these “advanced positions” while condemning New York’s absence of therapeutic exceptions as “a tragedy and a disgrace,” but a cautious-sounding Alan Guttmacher told Time magazine that anything more than reform was legislatively impossible because “the public does not want abortion on demand and is not prepared to accept it.” Efforts to prepare for 1969 reform bills were going forward in states such as Michigan and Minnesota, and in Texas the state medical association poll of its members had found 4,435 in favor of liberalization and only 536 against, but more and more national coverage, like that Time story, was highlighting how the very modest increase in the number of legal abortions allowed under reform statutes was “too small even to make an appreciable dent in the number of illegal” ones. Lonny Myers and her colleagues were still pointing towards a national repeal conference in February in Chicago to launch their nascent idea of NARAL as an organization, and in the state of Washington the sixteen-member Citizens’ Abortion Discussion Group, which had privately been discussing liberalization options since January 1967 without taking any public action, announced its existence and said it would champion a repeal bill in the 1969 state legislature. State Senator Joel Pritchard, one of several already-committed sponsors, told journalists that “our chances look good.”34
The Hot Springs ASA conference followed an academic format, with different panels of speakers focusing upon different aspects of abortion. A major initial speech was delivered by one of ASA’s principal financial patrons, John D. Rockefeller III, who said that repeal “will inevitably be the long-range answer” and that in the interim reform statutes had to offer “a broad interpretation of mental health” that would allow many if not all women to qualify under such a provision. California’s Ned Overstreet, in a talk that was highlighted in the New York Times’s coverage of the conference, explained how his state’s reform statute “really satisfies no one” and emphasized that “the voices raised in favor of abolishing all abortion statutes are growing in number and vigor with a speed that is simply astonishing.” In particular, Overstreet observed, Griswold “is being quoted increasingly frequently as a manifesto which points to the right of the individual woman to decide against pregnancy even though abortion is involved.”
Zad Leavy sounded a similar note in a lawyers’ panel, commenting that “I believe we are going to see recognition in the courts before we see it in the legislatures.” A law professor not involved in the litigation efforts, B. J. George, suggested that federal courts might well brush aside declaratory judgment cases challenging abortion statutes that actually had not been used to prosecute reputable physicians, but Roy Lucas carefully explained to everyone present that those sorts of procedural hurdles, so serious even just seven years earlier with Poe v. Ullman, had been all but eliminated by more recent Supreme Court cases, particularly a decision just a few months earlier in which the high court had enthusiastically upheld a declaratory judgment challenge to an Arkansas statute that prohibited the teaching of evolution. Larry Lader spoke for almost all participants in the conference when he emphasized that “complete repeal is the only real solution,” and the New York Times’s account of the conclave, like one in Newsweek, stressed that “The consensus at the end of the meeting … was nearly unanimous: Abolish all existing abortion laws.” Many who had gone thinking that they were members of a growing minority favoring repeal learned that their assumption was wrong and that such views were now very much in the majority. As Lader captured the realization in a subsequent letter to the absent Lonny Myers, “It seemed to me that almost everyone at Hot Springs (including people who were moderate a year ago) are now for repeal.”35
Bob Hall, highly pleased with the success of his long-planned conference, returned to New York and convened a mid-December dinner meeting with Roy Lucas for some prospective physician plaintiffs in the declaratory judgment test case. Lucas realized that their timetable was receding toward a possible actual case filing sometime in mid-spring, but Hall in particular seemed enthusiastic about proceeding, and even his long-standing moderation about the proper stance for ASA now no longer held him back from declaring in a magazine piece that “abortion must be the right of every woman.” The New York legislative repeal advocates had reached agreement with assembly members Cook and Leichter on the text of an actual repeal bill for the 1969 legislature, but a mid-December press conference announcing their initiative received almost no news media attention. Alan Guttmacher told one acquaintance that while repeal “must obviously be our eventual goal,” it would be “a long time before the state of New York was willing to legislate abortion on demand.”36
Activists in a number of other states felt that same way, calculating that therapeutic exception bills were the most they could possibly attain from 1969 legislatures and deciding that something was better than nothing. “I am working for reform, but I believe in repeal,” Connecticut activist Evelyn Warren told a friend about upcoming plans in that state. Reform bills were also being introduced in New Hampshire and in Texas, where thirty-two-year-old second-term state representative James H. Clark, Jr., of Dallas became the new legislative sponsor for Dr. Hugh Savage and the Texas Medical Association’s long-sought liberalization provisions.37
But new reform proponents were often outnumbered by prior reform supporters who now advocated repeal. Colorado’s Dick Lamm went public with his unhappiness about the exceedingly modest impact his 1967 measure had had, writing in the Denver Post that “the right to control her fertility is a right every woman should have” and contending that “compulsory pregnancy is a form of involuntary servitude.” Atlanta’s Alan Bonser, the primary activist in Georgia Citizens for Hospital Abortions, told Larry Lader that the new 1968 reform statute there “is terrible compared to what I personally think we should have.” The New York Times Magazine ran a prominent story bluntly titled “How California’s Abortion Law Isn’t Working,” and quoted Garrett Hardin as terming the 1967 reform statute “virtually worthless.” A Washington Post reporter located Sherri Finkbine, who was now operating an Arizona dress shop, to see how her views had evolved over six years, and Finkbine forthrightly answered that “abortion should be the right of the woman … It should be a private, introspective decision.”38
Bob Hall’s ASA had spun off a sister organization, the Abortion Reform Association, or ARA, whose mission was to make modest grants to local-level liberalization groups, but when Lonny Myers’s Chicago group, ICMCA, twice requested funds to support a 1969 campaign for a repeal bill in the Illinois legislature, Hall and John Lassoe, ARA’s other principal figure, repeatedly turned them down. ICMCA was receiving some significant financial backing from Midas Muffler executive Gordon Sherman and from Hugh Hefner’s Playboy Foundation, but hackles were raised when Hall and Lassoe frankly informed Myers and her colleague Don Shaw—like Lassoe an Episcopalian executive—that while they all agreed that repeal was preferable to reform, ARA would not abide ICMCA’s opposition to reform. While Myers and Shaw, like others before them, had concluded that passage of a reform bill would more than likely hinder chances for legislative repeal, Lassoe strongly disagreed, arguing that a reform statute, “by demonstrating how few people it does help,” can “provide the impetus for repeal,” as the recent—and ongoing—history of reactions to the California and Colorado measures clearly indicated.39
Neither Hall nor ASA executive director Jimmye Kimmey attended Myers and Lader’s mid-February Chicago conference that would give formal birth to their new national repeal organization, NARAL. Kimmey lamely told the Chicagoans that ASA’s tax-exempt status prohibited her from coming, but she expressed the hope that as a result of the meeting “some too-timid reformers will be encouraged to seek more and that some too-adamant repealers will learn useful lessons in political reality.” More than 350 people attended the three days of sessions at Chicago’s posh Drake Hotel, and those participating ranged from wealthy financial contributor Joseph Sunnen to oft-imprisoned abortionist Nathan Rappaport. Author Betty Friedan and American Public Health Association president Lester Breslow both gave powerful speeches advocating repeal, and even Alan Guttmacher offered a slightly tentative endorsement of repeal. On the conference’s final day a sometimes chaotic plenary session was devoted to choosing a steering committee which would be responsible for creating an actual organization to be called NARAL, although considerable unhappiness resulted when nine of the twelve members—including Larry Lader, Lader’s doctor friend Bernie Nathanson, Ruth Cusack, politician Percy Sutton, philanthropist Stewart Mott, and Friedan—ended up being New Yorkers. NARAL’s creation received prominent coverage in virtually every major American newspaper, and one New York ACLU activist reported to the national office that the most significant aspect of the repeal conference was in how it reflected “the rate at which this drive is accelerating.” Within two weeks’ time Lader and his steering committee colleagues had opened a New York office and hired a New Jersey woman, Lee Gidding, as executive director, and soon after that Lader himself was formally elected as chairman of NARAL’s board.40
Several of the attendees at the Chicago conference, and not just Nathan Rappaport, embodied the increasing ties that were gradually developing between the repeal movement and the older, generally quite secretive world of actual abortion providers. Rappaport, because of his many arrests and significant jail sentences, was a considerably more public figure than any of his putative colleagues, but a more representative figure who attended the Chicago conference and began to take an active part in NARAL activities was Detroit’s fifty-five-year-old Dr. Ed Keemer. A 1936 graduate of Tennessee’s traditionally black Meharry Medical College, Keemer performed his first abortions in 1938 in Richmond, Indiana. He refused to serve in the armed forces after being rejected on explicitly racial grounds for an officer’s commission that would have brought him into the service as a doctor rather than a grunt, and then pursued an interest in political change by becoming an active member of the Socialist Workers Party and writing a regular column for the party paper, The Militant, under the pen name “Charles Jackson.” Keemer was far from alone in being an activist black M.D. who did a thriving business in abortions; Dr. T. R. M. Howard, a prominent figure in Mississippi’s nascent civil rights movement in the 1950s until being forced to flee the state, soon thereafter established a highly remunerative practice in Chicago. In August 1956, however, Ed Keemer’s luck ran out in Detroit when he and three other physicians were arrested in an abortion raid by city police. Convicted and sent to prison in 1959, Ed Keemer, like Tim Timanus in Maryland, struck up something of a correspondence with Alan Guttmacher after seeing an article in which Guttmacher endorsed reform. Keemer was released after serving fourteen months, and once his medical license was restored a year or two later, he carefully resumed his prior practice and then in late 1960s had his abortion trade suddenly snowball once he was discovered by the Clergy Consultation Service network.
Ed Keemer was a credible and significant representative of a world that up until early 1969 had received virtually no public attention other than occasional and never friendly police beat stories on arrests and convictions. Like Ed Keemer, Ruth Barnett Bush had performed her first abortion decades earlier, in Portland, Oregon, where she and several other regular providers practiced their profession rather openly and with only occasional legal interference. First raided in 1951, Bush was convicted and served four months in jail before resuming her work until a second arrest in 1956. That conviction resulted in a ten-month sentence in 1958, but then almost eight years passed until—at the age of seventy-two—Bush was arrested and convicted in the summer of 1966. After that conviction was affirmed on appeal, Bush entered prison in early 1968 and served five months before being paroled. In jail she had the time to draft her memoirs, and in early 1969, just as the NARAL conferees were assembling in Chicago, Bush’s small autobiography was published to little if any public notice. “Abortion is a matter of personal decision,” Bush wrote, and she had “long believed that every woman has the right of abortion if she believes it necessary.”41
That same month the doctor who posthumously would become America’s most celebrated abortionist died at the age of seventy-nine in his small home town of Ashland, Pennsylvania. Robert D. Spencer had received his medical degree from the University of Pennsylvania in 1916 and had opened his practice in Ashland three years later. Spencer had begun performing abortions in the mid-1920s, with most women initially being referred to him by other doctors whom Spencer knew or by mutual friends. Over the years, as word of Spencer’s friendly manner, great competence, and exceptionally modest fees—never more than a hundred dollars, even in the 1960s—spread by word of mouth, a veritable network of Spencer alumnae gradually came into existence, both in Pennsylvania and eventually in New York City. Spencer estimated that all told he had performed somewhere between thirty and forty thousand abortions, and while he was arrested on three occasions, the two cases that actually went to trial both ended in verdicts of acquittal.
Spencer’s fame first broke print in a 1966 Village Voice story that spoke only of “Dr. S,” but eight months later, following his retirement, a New York Times piece identified him by his full name and called him “the saint.” Time magazine later named him as well, and although he was far too ill to attend ASA’s Hot Springs conference in person, Bob Hall asked Spencer to submit a paper recapping his life’s work, which John Lassoe read in his absence. Written with considerable understatement but with unmistakable pride, Spencer described how in his later years several of his patients were brought to him by their mothers, whom he previously had helped in similar circumstances. “To me,” he wrote in his ASA remarks, “a good and sufficient reason” for abortion “is the simple fact that the person has firmly decided she does not want the baby.”
When Spencer died in January 1969, the New York Times accorded him a substantial obituary that erroneously credited him with having performed over a hundred thousand abortions. Just a month earlier Dr. Rappaport had taken New York writer Susan Brownmiller and a young correspondent for Medical World News to meet Spencer, and after his death Brownmiller published a front-page obituary in the Village Voice and Medical World News ran a two-page profile. Newsweek magazine followed up with an obituary story of its own, and a month later the Los Angeles Times offered its readers a lengthy, front-page profile of the Pennsylvania physician, entitled “Defiant of Law, Full of Life, Doctor Won Town’s Esteem.”42
But few abortion providers ever received even a fraction of the public recognition posthumously accorded Dr. Spencer. Indeed, neither then nor in later years did the netherworld of illegal abortion get any significant amount of attention from serious journalists or scholars. One anthropologist prepared a nine-page ethnographic study of an apparently quite competent clinic located just across the Mexican border from California, where the daily routine was most notably distinguished by the fact that “at no time is the word abortion used.” A Harvard sociology student devoted her doctoral dissertation to a top-quality study of the acquaintance networks that women used when searching for an abortion provider, and two Virginia researchers painstakingly tried to come up with a reliable estimate of the total number of illegal abortions that had been sought in their state during 1967, and settled on a figure of 21,000. A young sociologist at an Atlanta-area college prepared a brief but breathtaking paper for ASA’s Hot Springs conference based upon interviews with five abortionists—and thirty of their surviving patients—who “practiced” in one city of about a quarter-million people. The “most successful” provider, a chiropractor with more than twenty years’ experience in his sub-rosa field of endeavor, estimated that he performed hundreds of procedures each year but was unavailable for reinterview when he left town hurriedly following a patient’s death. Another twenty-year veteran was a black midwife and nurse whose regular job was at a local hospital, and a third was an antique and drug dealer who had been expelled from medical school at least three decades earlier. The lowest price in town was apparently charged by “a young white automobile mechanic,” who had in turn learned his technique from a friend who also had been expelled from medical school. He generally requested a fee of fifty dollars, although “he will accept less if they permit him to have sexual relations with them.” Hence it was no small wonder that providers like Ed Keemer were much appreciated, or that within the network of Spencer alumnae the Pennsylvania physician was sometimes spoken of as “the saint of Ashland.”43
By early 1969 the Clergy Consultation Service, with support from Stewart Mott, had expanded into a national network with a rapidly growing number of local affiliate groups, and its roster of providers had grown significantly, with even quite mainstream doctors such as Bernie Nathanson accepting a significant number of patients.44 But while Lader and many other repeal activists were for the moment primarily concerned with getting NARAL off the ground and continuing to build the referral network, most abortion litigators were preoccupied with the preparatory work leading up to the potentially all-important March 4 oral argument of Belous before the California Supreme Court. A. L. Wirin and Fred Okrand’s brief for Dr. Belous was supplemented by three supportive amicus briefs: by Norma Zarky on behalf of the ACLU’s chapters, by Herma Hill Kay for eighteen prominent attorneys recruited by Charles Munger, and by Zad Leavy on behalf of a highly impressive nationwide roster of prominent physicians pulled together by CCTA and including Alan Guttmacher and Bob Hall from New York and Lee Buxton from Connecticut. Zarky told her CCTA colleagues that “I don’t suppose any of you who are not lawyers can appreciate how deeply Mr. Munger reached into the establishment for signers of the lawyers’ brief,” and that submission, like Wirin and Okrand’s, laid heavy emphasis upon how abortion involved precisely the same sort of liberty and privacy concerns to which the Supreme Court had given constitutional protection in Griswold. “We think proper constitutional interpretation,” the lawyers’ brief said, “requires both contraception and early abortion by licensed physicians to remain private matters.”
The California signers of Leavy’s impressive brief included University of Southern California Medical School Dean Roger O. Egeberg as well as CCTA mainstays Keith Russell and Ned Overstreet. Much as in his earlier Shively brief, Leavy offered the court an extensive constitutional argument, contending that the Bill of Rights and particularly the right to privacy “reserves to the individual control of the procreative function free from unreasonable restriction by the state.” The old California abortion statute “drastically interferes with a woman’s right to control the use of her own body,” and additionally “an even stronger claim to constitutional protection can be asserted by the married woman acting to preserve and protect her family, with the support of her husband under the guidance of her doctor.” Repeatedly invoking Griswold, Leavy argued that “the mere fact of fertilization should not ipso facto and eo instante abolish or limit the constitutional right of the married couple to decide whether to have a child.” “For all the reasons which led to the striking down of Connecticut’s prohibitions against pre-fertilization birth control in Griswold, this Court should strike down California’s statute prohibiting post-fertilization birth control.”
Egeberg and his colleagues were highly pleased with Leavy’s work, but Charles Munger alerted everyone that their opponents were investing almost as much effort in Belous as they were. In addition to the expected defense of the antiabortion statute, and Belous’s conviction, submitted by California Attorney General Thomas C. Lynch and his deputy, Phillip G. Samovar, the diocesan counsel for James Cardinal McIntyre of Los Angeles, Joseph J. Brandlin, arranged for preparation of an antiabortion amicus brief. Its signers included former state Board of Medical Examiners member Dr. James V. McNulty, who had instigated the Shively charges, and the diocese also retained a Jewish attorney who was highly respected by some members of the California court, Herman F. Selvin, to present oral argument on behalf of those amici.
The March 4 Sacramento hearing before the seven-justice California Supreme Court was a major production that thus featured four different attorneys all offering oral argument: Wirin and former bar association president Burnham Enersen for Belous and the Belous amici, and deputy attorney general Samovar and Selvin for the state and its diocesan supporters. Roy Lucas flew all the way from New York simply to watch the argument, but it was immediately clear that the justices, particularly Justice Raymond E. Peters and Chief Justice Roger Traynor, were much more interested in Wirin’s contention that California’s pre-1967 statute was excessively and hence unconstitutionally vague than in Enersen’s argument that the court should reach the more fundamental constitutional issues. Lucas, Zad Leavy, and Norma Zarky all left the Sacramento hearing feeling quite optimistic, based upon the justices’ questions, about the chances for a reversal of Belous’s conviction, but Leavy expressly told his CCTA colleagues that he expected a ruling based upon the narrow grounds of vagueness and Zarky added that she “felt sure they are not going to reach Griswold.”45
Lucas discussed his plans for a New York declaratory suit with the California attorneys, and Leavy and Wirin agreed that a similar case might have to be considered in California should Belous turn out unfavorably. Lucas had also agreed to a request from a New Jersey attorney, Jacob Balk, who had read Lucas’s North Carolina Law Review article, to take the lead in preparing a longshot petition asking the U. S. Supreme Court to review a state court decision dismissing a case that Balk had filed on behalf of a rubella-damaged baby and his parents against the physicians who had failed to advise them of the risk of fetal defects or to raise the option of seeking an abortion. The New Jersey Supreme Court had itself declined to review the lower court dismissal of Morin v. Garra, but Lucas gamely told the U.S. Supreme Court that “The importance of this case far transcends its particular facts and the interests of individual litigants. It raises the conflict between the state laws on abortion and the woman’s interest in not being compelled to bear offspring each time she conceives. This is a conflict which will increasingly appear in petitions to this court, and one which deserves serious and immediate attention. Its ultimate resolution will determine whether the women of these United States are to be treated as citizens with control over their reproductive capacities, or instruments of the State who must perpetuate the human race in the way specified by a majority of their state legislators.” The principles of Griswold undeniably ought to protect “the personal autonomy of a woman with respect to her reproductive capacities,” and “Certainly the right to control the planning of one’s own family is a corollary of the broad right of marital privacy whether contraception or abortion after the failure of contraception is at issue.” To no one’s surprise the Supreme Court without comment declined to review Morin, and similarly refused to hear an abortion appeal by a Louisiana doctor with a heavily checkered record, Sidney C. Knight, whose medical license was being pursued by state regulatory officials.46
The major east coast abortion focus in early 1969 was not court litigation, however, but the renewed legislative liberalization drive in New York. Connie Cook and Franz Leichter had indeed introduced a repeal bill, and although Al Blumenthal’s far more modest therapeutic reform measure also was up for consideration again, almost all liberalization energy was directed toward promoting the Cook bill, not Blumenthal’s. Ruth Cusack’s abortion committee of the New York NOW chapter had evolved into a quasi-separate group that called itself first Citizens for Abortion Law Repeal and then New Yorkers for Abortion Law Repeal, but the first major splash made on behalf of legislative repeal came not from these proponents of energetic lobbying but from a decidedly more theatrical presentation staged by about thirty members of a more radical feminist group, Redstockings, at a mid-February hearing on the Blumenthal and Cook bills held in Manhattan by the legislature’s Joint Committee on Public Health.
Redstockings was not the first women’s liberation group to appear on the New York political scene, but it was the first to devote particular attention to the issue of abortion law repeal. Previous groupings, starting with New York Radical Women, had appeared as early as December 1967, but as one of the first true activists in the movement, Jo—then Joreen—Freeman, later noted, “women’s liberation did not begin in New York.” Freeman herself in Chicago, along with three friends in several cities, initiated in March 1968 the first publication that marked the emergence of this new wave, Voice of the Women’s Liberation Movement, and other early women’s liberation groups appeared in such different cities as Gainesville, Florida, and Detroit, in addition to Chicago.
Redstockings decided to disrupt the February 1969 New York legislative hearing in part because the witness list on the subject of abortion featured fourteen men and one woman—a Roman Catholic nun. The disruption forced a brief adjournment before the hearing resumed in private quarters, and one repeal supporter, Democratic Senator Seymour Thaler of Queens, denounced the women for tactics that he believed hurt rather than helped their cause. At the end of the seven-hour hearing three Redstockings representatives were allowed to address the committee, and the events of the day received modest but not prominent media attention. “We are particularly interested in exposing the concept of expertise, as opposed to letting people make decisions about their lives,” Ellen Willis, one of Redstockings’ most prominent members, later told a journalist.
New York newspapers were full of a seemingly almost endless stream of small stories announcing that more and more mainstream groups—New York City’s Presbyterian and Episcopal churches, the state Correctional Association, the Liberal Party, and both the city and state Councils of Churches—were explicitly endorsing abortion law repeal, but legislative observers gave Cook’s bill no chance of coming even close to passage. Journalists believed that Blumenthal’s ALI-style reform bill had much better prospects, in part because the new Republican Assembly Speaker, Perry B. Duryea, Jr., who already had been fully educated on abortion by Ruth Cusack, favored liberalization and also because, as the New York Times put it, the 1969 session reflected “an unmistakable change of climate” on the abortion question. Public Health Committee chairman Senator Norman Lent had said in mid-January that “It is not a question of whether a law will be passed; it is a question of what form it should take,” and the serious legislative jockeying focused upon what particular therapeutic exceptions should be allowed, not on the possibility of full repeal.47
In late February PPFA president Alan Guttmacher, now seventy-one years old, distributed a public letter announcing his long-delayed but now more-than-full conversion from reform to repeal: “I personally strongly favor the Cook bill and removal of abortion from the criminal code.” Guttmacher acknowledged that the Cook bill “has little chance to pass,” and then he made a far more astounding declaration: now, like Garrett Hardin and Lonny Myers before him, he too was convinced that reform hindered rather than hastened the prospects for eventual repeal. “I fear only that the Blumenthal bill or something worse will become law,” Guttmacher said. “I believe this would be a catastrophe for it would postpone real liberalization for another decade or two,” and would lead to a situation—as in Colorado—where medical implementation of a reform statute might very well make it even more conservative in practice than its legislative sponsors had intended. Absent full legislative repeal, Guttmacher indicated, the best course for meaningful liberalization lay in the courts, where he understood “that there is a good chance for a favorable decision.”
Two weeks after Guttmacher’s memorable letter, the New York legislature’s joint Public Health Committee endorsed an amended version of the Blumenthal reform bill by a margin of 8 to 3. Blumenthal believed that he had five or six votes more than he needed to pass the bill on the floor of the state assembly, but when it was called up for debate in mid-April, an “emotional” and “highly personal” attack on the measure, particularly its fetal defects provision, by Martin Ginsberg, a polio-crippled Nassau County Republican who had previously backed the bill, suddenly and unexpectedly turned the tide. Some fourteen anticipated supporters, all but one a Republican, shifted sides and voted no, and what Blumenthal had projected to be a comfortable victory turned into a highly embarrassing 78 to 69 defeat.48
The New York loss was not the only painful setback experienced by abortion reformers in the spring of 1969. In Texas the overwhelming 1968 endorsement of liberalization by the members of the state medical association led both Hugh Savage and the primary legislative sponsor of reform, Dallas Representative James H. “Jim” Clark, Jr., to attempt another big push, but officials of the Texas Catholic Conference strenuously opposed Clark’s bill and San Antonio Archbishop Robert E. Lucey publicly declared that any legislator who would vote for it was “a murderer.” Clark initially thought the bill had a good chance of being favorably reported by the Public Health Committee, but in the wake of the Catholic onslaught he frankly conceded that “I don’t have enough votes to get it out of committee.” The legislators themselves were not opposed to reform, Clark explained; “It’s the political repercussions they fear from the Catholic opposition. Minorities, if they are militant enough, and determined enough, can stop things.” By late March it was clear that Clark’s bill was dead, and a frustrated Hugh Savage told reporters that “it’s time the public got stirred up—doctors can’t pass legislation.” After all, he stressed, there was nothing radical about Clark’s reform bill; “we’re just trying to legitimize what already is being done.”49
Reformers had distinctly better luck in neighboring New Mexico, where an ALI-style therapeutic reform bill passed the state house by a narrow margin of 36 to 34 and the state senate by 25 to 15. Roman Catholic Governor David F. Cargo had the power to veto it but chose not to, announcing in late March that “I do not feel that my own personal religious beliefs should interfere with the enactment of this statute.” Hence the bill became law without Cargo’s signature, and took effect three months later in June. In Arkansas a reform bill successfully made its way through the state legislature without attracting any significant national attention, and in Kansas the state senate, also without any national news coverage, passed a repeal bill by a vote of 25 to 12. Once it reached the house floor, however, extensive weakening amendments were adopted that transformed it into a reform measure. A conference committee resolved the differences in favor of the house version, and in late April the reform bill was signed into law. Several weeks later an extremely liberal reform bill that had been championed by the Oregon Committee for the Legal Termination of Pregnancy, a group originally created by the First Unitarian Church of Portland, was adopted by the Oregon legislature. It was soon signed into law by the governor, and in Delaware a reform bill that had squeaked through the legislature by a one-vote margin in the state senate also became law. All told, five new states had adopted reform bills, doubling to ten the pre-1969 total of five where therapeutic exceptions now gave at least a few pregnant women some chance of securing a legal abortion.50
With support from Bob Hall and John Lassoe’s New York-based ARA, the Connecticut League for Abortion Law Reform (CLALR) was able to open a Hartford office and hire a staff member for the 1969 Connecticut legislative session, but neither CLALR president Don Cantor nor any of his colleagues had any serious hope of passing even a reform bill during that 1969 session. CLALR board member Estelle Griswold, now living in retirement in Essex, Connecticut, told a Hartford reporter that the issue of legal access to abortion was just like the question of legal access to birth control in the years before 1965. “It’s the same old story. Women of influence and means can get therapeutic treatment denied to the poor,” because the first group, unlike the latter, either “knew someone or could go out of state.” At bottom, Estelle said, “This is basically a civil rights issue and rights that are denied to women.” The Connecticut Civil Liberties Union spoke out in favor of repeal and in opposition to reform at a mid-April legislative hearing, but even before a reform proposal was defeated by 89 to 69 on the house floor, Cantor and others were already thinking more of court action than of legislative success. Cantor appealed to Yale’s Tom Emerson for input and advice, telling him that both “Dr. Buxton and Mrs. Griswold, who are members of our Board of Directors, were quite certain that you would be interested in participating.” Emerson agreed, but nothing tangible developed and Katie Roraback advised the national ACLU that “I do not think that the issue will be resolved for a long time.”51
Reform bills failed to emerge from legislative committees in Iowa and in Minnesota, where the Minnesota Council for the Legal Termination of Pregnancy was furious when a group from the Radical Women’s Caucus disrupted a House Health and Welfare Committee meeting much as had happened in New York. In Nevada, where Joseph Sunnen had once had high hopes for passage of a repeal measure, a reform bill was defeated in the state assembly by one vote. In Hawaii a reform bill was approved by a comfortable margin of 39 to 12 in the state house but was not brought to the senate floor after the chairman of the relevant senate committee, Vincent Yano, a Roman Catholic father of ten, told supporters that he wanted to read more about the issue, and learn more about doctors’ sentiments, before making up his mind.52
In Illinois a repeal bill lost by only two votes in the state senate, and abortion activists were disappointed both with their own lobbying efforts and with one of their principal legislative sponsors. Michigan activists also made a push for a repeal bill, but in the end even a reform bill fell four votes short of passage in the state senate. They began to consider the possibility of petitioning for a popular referendum vote on repeal, and similar consideration of a referendum or initiative option also came to the fore in Washington state, where an all-out effort by Catholic opponents had succeeded in keeping a repeal bill bottled up in a senate committee. Seattle’s small Citizens’ Abortion Discussion Group, led by psychologist Samuel Goldenberg, changed its name to Washington Citizens for Abortion Reform (WCAR) in preparation for a statewide 1970 vote, and began debating whether to commission a private poll before making a definite decision to go the popular-vote route.53
While the many 1969 spring legislative battles were being resolved, Roy Lucas was moving to implement the plans for a new litigation group that he and Morris Dees had mapped out nine months earlier. Having firmly decided to hold off on filing a New York case until sometime in the fall, by which time a potentially helpful Belous decision might be in hand, Lucas began recruiting trustees for the James Madison Constitutional Law Institute (JMCLI), which would begin operation in September 1969 thanks to Dees’s largesse from his windfall deal with Times-Mirror. Norman Dorsen from NYU was the first to agree, soon followed by Tom Emerson, whom Lucas successfully wooed with a fan letter highlighting the importance of Griswold for upcoming abortion litigation. ACLU legal director Mel Wulf, his deputy Eleanor Holmes Norton, NYU’s Robert McKay, former Fowler Harper student Edwin Schur, and ASA’s Dr. Bob Hall all signed on, along with a host of prominent law professors—and oftentimes former Supreme Court clerks—from across the country: Anthony Amsterdam, Jesse Choper, Charles Black, and William Van Alstyne. By midsummer Lucas had prepared a snappy brochure, announcing that the nascent JMCLI would initially concentrate on issues of access to higher education and abortion and “will pioneer new constitutional frontiers. Only cases involving questions of constitutional law not presently settled or accepted will be pursued.” Lucas would be “Director and General Counsel,” Dees the president; a young lawyer with a special interest in students’ rights cases, Douglas J. Kramer, would be the one other staff attorney in addition to Lucas. The JMCLI brochure flatly announced that “Morris has agreed to place one million dollars of his personal funds in trust for the Institute as its financial base,” and by the end of the summer Lucas had formally left the Twentieth Century Fund and opened the JMCLI’s first office on West Ninth Street in Manhattan with himself, Kramer, and a secretary as the new staff.54
Lucas and others were waiting expectantly for Belous, but even in advance of that Lucas stumbled upon a seemingly obscure law review article that looked like as influential an endorsement of his litigation strategy as anything possible: an explicit endorsement of a Griswold-based right to abortion by recently retired Supreme Court Justice Tom C. Clark, who had stepped down from the high court when his son Ramsey had been named U.S. Attorney General. Clark’s eleven-page text was perhaps all the more unusual for appearing in the Roman Catholic-affiliated Loyola University Law Review, but in it the former justice laid out a firm critique of the inadequacy of therapeutic reform laws before proceeding to note both the inherent vagueness of such statutory language and then the constitutional meaning of Griswold’s right to privacy. Clark had joined Douglas’s 1965 opinion, not John Harlan’s concurrence, but Clark’s articulation of how judges “must look to the collective conscience of our society in determining which rights are fundamental and therefore protected” under Fourteenth Amendment due process liberty echoed Harlan’s dissent in Poe much more than Douglas in Griswold. But there was no doubt, Clark went on, that “abortion falls within that sensitive area of privacy—the marital relation. One of the basic values of this privacy is birth control,” but it certainly was not the only. With abortion, Clark said, “the vital issue becomes one of balancing,” and he articulated what that balance might be in a formulation that was prescient even if it did not explicitly speak of fetal viability: “until the time that life is present, the State could not interfere with the interruption of pregnancy through abortion performed in a hospital or under appropriate clinical conditions.”55
If the Clark article was unexpected good news for incipient litigators like Lucas, some modestly surprising bad news was the Massachusetts Supreme Judicial Court’s 4 to 3 affirmance of Bill Baird’s 1967 conviction for handing a package of Emko vaginal foam to a presumably unmarried young woman after his Boston University lecture. Six months earlier at oral argument, assistant district attorney Joseph R. Nolan had told the justices that Baird’s entire B.U. performance had been “an invitation to promiscuity and sexual license,” but that warning notwithstanding, the Massachusetts court voided on First Amendment grounds the second count on which Baird had been convicted for merely exhibiting contraceptives. The old Massachusetts statute provided for up to five years imprisonment for anyone who “sells, lends, gives away, exhibits, or offers to sell, lend, or give away” any article “for the prevention of conception or for causing unlawful abortion,” and in 1966, after Griswold, it had been amended only to the extent of creating express exceptions for doctors, nurses, and pharmacists to provide such articles to married persons. Baird’s distribution of the foam, the four-vote court majority said, added nothing to the content of his constitutionally protected lecture, and the ongoing validity of the Massachusetts law as amended rested upon its regulation of who could distribute such items, not on the marital status of the recipient, the court stated. Baird was not a doctor, nurse, or pharmacist, and hence the majority affirmed his criminal conviction for handing out the Emko foam. This affirmance, they insisted, was fully compatible with Griswold: “we rest this decision wholly upon the Federal Constitution and largely upon its construction by the Supreme Court.”
The Massachusetts court’s three dissenters contended that Baird’s handing out of the foam ought to be similarly protected, arguing that “the distribution should be considered part of constitutionally free speech and protest.” The usually irrepressible Baird was stunned by the outcome, explaining later that he had expected the Massachusetts high court would “knock the whole thing out.” Three weeks later he appeared before Suffolk County Superior Court Judge Donald M. Macaulay for his previously postponed sentencing, and prosecutor Nolan requested that a six-month jail sentence be imposed. When Macaulay meted out a term of three months’ imprisonment, one reporter described Baird as “visibly upset by the jail sentence.” The idea that someone in 1969 could actually go to prison for giving away a nonprescription product that was openly and legally on sale in thousands of American stores seemed almost too bizarre to consider, but it was now a very real possibility for Bill Baird. Despite Nolan’s opposition, Macaulay stayed Baird’s actual incarceration to allow Baird’s volunteer attorney, Joseph Balliro, to petition the U.S. Supreme Court to review the 4 to 3 Massachusetts decision, and in late July Balliro filed the appropriate papers. Two members of NOW’s New York chapter who were also very active members of New Yorkers for Abortion Law Repeal, Jim Clapp and Cindy Cisler, sought to persuade NOW to commission Roy Lucas to prepare an amicus brief, since whatever the Supreme Court did with Baird could well be “an important precedent” for Lucas’s yet-to-be filed New York abortion case. Their effort was unsuccessful, and Massachusetts Attorney General Robert H. Quinn told the Supreme Court, in answer to Baird’s petition, that Baird’s argument that the Massachusetts anticontraception statute was infirm under Griswold “reads too much from too little.… nothing in Griswold indicates that a state cannot limit the distribution of drugs and medical aids to properly trained personnel.”56
Baird’s odd and unexpected setback was only one incongruous piece of a rapidly developing mosaic, however. Several weeks later many of the country’s abortion activists gathered at a CCTA-sponsored conference in San Francisco, and national news coverage of the meeting once again highlighted the strong distaste that almost all the activists now felt toward reform-style statutes. The Los Angeles Times quoted Colorado’s Dick Lamm as lamenting that “we have replaced one cruel, outmoded law with another one,” and California’s Ned Overstreet confessed to his colleagues that “I can scarcely believe the change in my own thinking that has taken place in the last decade” as he like others had shifted from reform to repeal. ASA’s Jimmye Kimmey tried to temper the zeal for repeal by suggesting that some activists were “unable to see that … the perfect can be the enemy of the good,” and by emphasizing that “it is not enough to be self-righteously right—it is necessary to be politically effective.” “In some states,” she contended, “the no-compromisers may have been detrimental to other reform efforts. One branch of the no-compromisers—the radical feminists—may have been instrumental on occasion in defeating the move to reform the law short of their ideal.”
Kimmey shifted to a less critical theme, however, by stressing that “it may be that disagreements over the content of legislation are not only debilitating to the movement but irrelevant to the goal.” Her point was that “the vital constituency” for real liberalization “is the medical community,” and that in actual practice “reform or repeal of the law” might not be the most crucial question, since “the objective is not merely to reform the law but to change medical practice.”57
Kimmey’s modest rhetorical overstatement did not significantly undercut her more basic truth that day-to-day physician behavior was actually of far greater practical importance than the dry black and white wording of statutes. That was precisely the lesson that more and more activists and observers were drawing from the postreform experience in Colorado and in other early reform states, where statistics increasingly suggested that the real impact of reform was very modest indeed. Dick Lamm told one medical journal that his 1967 reform measure had been “a bill that would help about 5 percent” of pregnant women seeking abortions but that “the doctors and hospitals have turned it into a 3 percent bill.” A Colorado hospital director volunteered that “it’s probably more difficult now to get a hospital abortion than it was before the law passed because of all the publicity and official scrutiny.” North Carolina reform law sponsor Art Jones complained that “the net result of the new law was merely to make legal what doctors actually had been doing previously,” and little if anything more, and a Georgia accounting showed that a grand total of only seventy-three abortions had taken place pursuant to that state’s reform law during the balance of 1968, with no increase occurring in 1969. A comprehensive survey by the magazine Modern Hospital concluded that “most hospitals in states where a reform abortion law is in effect are, to varying degrees, restricting themselves beyond the requirements of the law,” and a Maryland study revealed that every hospital in the state was limiting therapeutic abortion services to Maryland residents even though the reform statute imposed no such requirement.58
Particularly in California there was significant medical tension and disagreement over the manner in which the reform statute’s mental health exception was being implemented, with one very sympathetic study in a leading journal concluding that “There is general knowledge that psychiatrists are prone to identify as suicidal patients who are not. This creates skepticism and resistance by other physicians.” A prominent essay in the New England Journal of Medicine similarly highlighted “the humanitarian need that frequently masquerades under the hypocrisy of a pseudo-psychiatric label such as ‘suicide risk,’” and longtime CCTA activist and psychiatrist Jerry Kummer publicly acknowledged “a marked tendency for psychiatrists to indicate suicidal risks when indeed none exist.” A California survey undertaken by CCTA president Keith Russell and a colleague revealed that while 88 percent of California’s roughly five thousand hospital abortions in 1968 had taken place under a mental health rubric, standards varied tremendously from one part of the state to another: greater San Francisco accounted for 23 percent of California’s births and 64 percent of abortions, while greater Los Angeles hospitals had 44 percent of births and only 19 percent of abortions. Just as Kimmey suggested, the medical practices that determined how a law would be implemented counted for a good deal more than the language of the statute itself.59
Not long after the CCTA conference Kimmey’s boss, ASA president Bob Hall, went so far as to dismiss reform bills by asking “What will the passage of such laws do to the practice of abortion? Not much.” Abortions during the first twenty weeks of pregnancy should, and ultimately would, be legal, Hall said, with “the ultimate solution” coming from the courts, and perhaps fairly soon. Even Reader’s Digest published a prominent article highlighting the shift from reform to repeal, and Time magazine featured Harris poll results showing that 64 percent of Americans now “believe that abortion should not be a matter of the law but should be left to the prospective parents and their doctor; even a 60% majority of Roman Catholics agree.” A more scholarly study of those rapidly evolving attitudes noted how “in only a few years abortion has been transformed from a taboo topic to daily newspaper copy,” but stressed that while very heavy majorities indeed did back legal abortions in specific therapeutic cases, only a small minority—Time’s presentation notwithstanding—actually endorsed repeal.60
The nationwide Clergy Consultation Service referral network continued to expand apace, but in May and June 1969 two events caused significant scares among the growing ranks of participants. On May 24 New York City police raided an abortion facility quietly housed in an apartment building in the Riverdale section of the Bronx and arrested its four principal staff members, including a doctor licensed to practice in the Dominican Republic, although not in the United States. Bronx District Attorney Burton Roberts coupled his announcement of the arrests with a somewhat surprising declaration that “the law needs modification and liberalization so we can face the problem realistically,” but Larry Lader and other New York activists who had been using the Riverdale group as one of their primary referral facilities were terrified that they too—just like Bill Baird—might soon be on their way to jail. Roberts subpoenaed more than fifty people—including Lader, several ministers, and Bernie Nathanson, who cited the Fifth Amendment and declined to testify—to appear in front of a grand jury pondering criminal charges, but in the end only the actual staff was indicted. Several eventually settled the charges simply by paying modest five-hundred-dollar fines, and none actually ever stood trial, but the raid greatly disrupted the functioning of the east coast referral network.
Two weeks after the Riverdale raid, a Massachusetts grand jury, pursuing charges against a Massachusetts doctor who eight years earlier had been prosecuted on another abortion charge, Pierre V. Brunelle, also indicted a thirty-five-year-old Cleveland minister, Reverend Robert W. Hare, who had never visited Massachusetts or spoken with Brunelle but who had given Brunelle’s name to a young Cleveland woman as part of the Clergy Consultation Service operation in Ohio. Many observers thought it highly unlikely that Massachusetts’s prosecution of Reverend Hare would succeed, but the first indictment of a ministerial participant in the clergy referral network dramatically highlighted the possible risks being run by those who openly conducted the clergy service.61
On Friday, September 5, 1969, the California Supreme Court issued its much-awaited decision in People v. Leon P. Belous. Although the vote was a razor-thin 4 to 3, Justice Raymond A. Peters’s majority opinion voided Belous’s conviction on the grounds that California’s pre-1967 antiabortion statute was unconstitutionally vague. The one exception in the old statute allowed an abortion if it was “necessary to preserve” the pregnant woman’s life, and the four-vote majority held that both “necessary” and “preserve” were excessively vague. “A showing of immediacy or certainty of death is not essential for a lawful abortion” under the old language, and once that was conceded, the majority indicated, the statute offered a doctor no clear guidance as to which health-related abortions were “necessary to preserve” a woman’s life and which—in the eyes of a prosecutor or jury—might not be.
But the California majority did not limit itself simply to that issue of statutory interpretation. Without expressly indicating whether its additional comments were or were not an essential part of its holding, the Peters majority much more significantly asserted that “The fundamental right of the woman to choose whether to bear children follows from the Supreme Court’s and this court’s repeated acknowledgment of a ‘right to privacy’ or ‘liberty’ in matters related to marriage, family, and sex.” Citing Griswold, Loving v. Virginia, and several other precedents reaching back to Meyer v. Nebraska and Pierce v. Society of Sisters in the 1920s, the California court also stated that the fact “That such a right is not enumerated in either the United States or California Constitutions is no impediment to the existence of the right.”
The Belous majority extensively and explicitly relied upon Zad Leavy’s amicus brief on behalf of the 178 medical school professors and deans, and argued at some length that if an antiabortion statute like California’s was interpreted to require a “certainty of death” before an abortion could be allowed, such a reading would create a “great and direct infringement of constitutional rights,” particularly where “abortion is sought during the first trimester” of pregnancy. Justice Peters also analyzed how the vague but worrisome threat of criminal prosecution that the abortion statute placed over any doctor evaluating a woman’s abortion request inescapably created a situation where a physician, rather than relying solely upon best medical judgment, might very well give more weight to minimizing any chance of prosecution than to provide the best possible care for the patient and thus refuse to perform an abortion that even under the statute should take place. The state, “in delegating” to a doctor “the power to decide whether an abortion is necessary, has skewed the penalties in one direction: no criminal penalties are imposed where the doctor refuses to perform a necessary operation, even if the woman should in fact die because the operation was not performed. The pressures on a physician to decide not to perform an absolutely necessary abortion are,” the Court said, “enormous.”62
Although the Peters opinion was not always a model of clarity, what it lacked in precision it more than made up for with its outspoken, Griswold-oriented constitutional suggestiveness and with its explicit hint that the stage of pregnancy during which an abortion might take place could well be of particular significance. The next morning’s Los Angeles Times immediately labeled the decision a “Landmark Ruling,” and both medical publications and the popular press gave it extensive attention, with Time magazine remarking upon the “awesome list of supporters” who had endorsed one or another of the Munger-initiated amicus briefs. Keith Russell, Roy Lucas, American Medical News, and counsel for the California Medical Association all adopted the “landmark” characterization, and an ecstatic Zad Leavy termed the decision “the most significant opinion in an abortion case in Anglo-American jurisprudence since the inception” of antiabortion statutes in the early nineteenth century. “The real thrust of the decision,” Leavy asserted, “was the enumeration for the first time of certain basic rights of women over their own bodies,” and Keith Russell, in a deeply moving letter to the many signers of Leavy’s amicus brief, acknowledged Belous’s “landmark” importance while describing the victory as “but a single episode in a long endeavor to obtain appropriate freedom for women and licensed physicians.”63
California Attorney General Thomas Lynch moved to have the state court reconsider its decision, contending that the purpose of the old statute was to “protect the unborn child,” but the California court quickly denied his motion. Lynch announced he would seek review by the U.S. Supreme Court, but the CCTA network of lawyers estimated that the chances of Belous being disturbed were very low indeed. Norma Zarky stressed that what the California court had said with regard to vagueness, as well as with its acknowledgment of “the fundamental right of the woman to choose,” made every abortion statute in America highly vulnerable to constitutional attack, and Roy Lucas in particular welcomed Belous as exactly the sort of high-status endorsement of his Griswold-based litigation strategy that he had been hoping for in advance of filing a federal court declaratory judgment challenge to the New York antiabortion statute. The Peters opinion had cited his 1968 North Carolina Law Review article, and without delay Lucas began making the final preparations in New York. Belous also energized Morris Dees to begin exploring whether there might now be an Alabama doctor willing to help reactivate Lucas’s earlier idea of filing a challenge to that state’s antiabortion law, and in New York Lucas settled on a three-pronged strategy of attack. A lead suit would be filed on behalf of physicians, and two companion cases would be brought in the names of clergy referral activists and poor women who might desire abortions. Tactically Lucas would move to secure a special three-judge panel, and sought to time the actual filing of the lead action, the doctors’ case, so that the motion requesting the panel would be heard by a reputedly sympathetic federal district judge.64
The doctors’ case would be cosponsored by Lucas’s Madison Institute, the ACLU, and ASA, but in Lucas’s eyes nothing about this first affirmative case ever to contend that abortion entailed a fundamental individual liberty would be more important than the reputations and professional stature of the physician plaintiffs. And nothing said more about how dramatically expert sentiment on abortion had shifted from lobbying for reform to litigating for repeal than the identities of the four prominent doctors whose names would appear at the top of formal complaint that Lucas filed in Manhattan’s federal district court on Tuesday, September 30: Robert E. Hall, Alan F. Guttmacher, Seymour L. Romney, and Louis M. Hellman. Romney and Hellman, who had long been an active member of ASA’s board, were both well-known professors of gynecology at New York medical schools; Hall and especially Guttmacher—as the public record of the previous decade amply revealed—had been the most outspoken medical champions of reform before finally endorsing repeal. The presence of their two names on Lucas’s suit signified more strikingly than anything else how the long and usually friendly wrestling match between reform and repeal had indeed been concluded by the reformers themselves becoming repealers.
Norman Dorsen, Harriet Pilpel, and the ACLU’s Mel Wulf also signed the complaint in what would be styled Hall versus Louis Lefkowitz, the New York State Attorney General. The filing of the suit received widespread press coverage in out-of-town papers like the Washington Post as well as in the New York Times, but the ACLU’s desire to claim press release credit for a case “it has filed”—as well as for Belous—set off a brief but intense private battle over whether one organization was unfairly trying to hog publicity for legal work that very largely had been carried out by others. ACLU executives tried to brush aside Lucas’s angry complaints about their self-serving behavior, and Lucas drafted but did not send a tart letter naively telling the ACLU that “that kind of jockeying for position has little place in a movement.”65
California’s Charles Munger, understandably quite pleased at how successful his and Warren Buffett’s quiet investment of more than fifty thousand dollars to sponsor the Belous amicus briefs had turned out to be, commended Lucas on the filing of Hall and recommended on pragmatic grounds the same tactics the Californians had employed in Belous: “using separate amicus briefs signed by substantial groups of ‘establishment’ lawyers and doctors. This can’t hurt, and may help with one or more key judges of a cautious or conservative type.” Munger and Buffett were continuing to finance the Los Angeles clergy referral service, even to the point of helping the principal clergyman, J. Hugh Anwyl, start a new church after being dismissed from his previous pulpit, but Munger stressed to Lucas that in his judgment the practical impact of Belous within California would be so substantial in dramatically liberalizing the availability of abortion that no actual litigation challenge to the newer, 1967 reform statute would really be necessary. Munger immediately began channeling some of his financial largesse into the actual provision of abortion services, and his forecast as to how significantly the medical situation in California would change in the powerful wake of Belous would soon prove extremely prescient.66
Lucas’s two planned companion cases to Hall v. Lefkowitz, one on behalf of clergymen and one filed by several legal services attorneys on behalf of poor women, were soon joined by a third. Abramowicz et al. v. Lefkowitz made much the same complaint against the New York abortion statute as the Hall trio—that the law invaded “plaintiffs’ right of privacy or liberty in matters relating to marriage, family and sex” and infringed upon “the fundamental right of a woman to choose whether to bear children”—both phrases that were drawn directly from the Peters opinion in Belous. The all-female group of Abramowicz plaintiffs initially numbered more than 125, and while formally they were represented by an all-woman team of lawyers, press coverage of their early October filing stated that much of the legal work had been done by New York attorney Gerald Lefcourt. Their suit was combined with the three other cases, and in late October U.S. District Judge Edward Weinfeld—precisely the jurist whom Lucas had been aiming for—heard argument on Lucas’s motion to convene a special three-judge court. Within a week Weinfeld issued a brief opinion granting the motion, and although the three judge panel unsurprisingly denied a request for an order blocking any further enforcement of the New York law in advance of the actual trial and decision of the four conjoined cases, the composition of the panel—Weinfeld, Circuit Judge Henry J. Friendly, and District Judge Harold R. Tyler, Jr.—left Lucas and his colleagues extremely optimistic. Once what in all likelihood would be the abortion case was indeed heard and decided by that panel sometime in the spring, the judgment, whether favorable or unfavorable, would then be directly reviewable by the U.S. Supreme Court. If the promise of Belous indeed proved true, all antiabortion laws across the entire United States might well be declared unconstitutional by perhaps June 1971.67
Lucas had long intended the New York case to be not the only federal court suit against a state abortion law, but simply the first of several, and it soon became clear that Belous would mobilize any number of lawyers and potential plaintiffs. Dees was having no success finding willing doctors in Alabama, but at a small, ARA-sponsored meeting in New York in mid-October a tall and strikingly handsome man—Hugh W. Savage—introduced himself to Lucas and said that he and a number of other Texas doctors were interested in bringing a Hall-type suit there. Savage also suggested that funds to support such a case could be generated in Texas, and Lucas responded with particular enthusiasm, in part because arcane complications in Morris Dees’s remunerative deal with the Times-Mirror Corporation were likely to leave the Madison Institute with considerably less financing than had earlier been envisioned. A Texas case would require perhaps twenty-five thousand dollars over several years, Lucas told Savage, plus a Texas attorney knowledgeable about federal courts and constitutional litigation. Such a Texas case would be one of several companions for Hall, Lucas explained, because ideally “it would be desirable that five or six cases reach the U.S. Supreme Court simultaneously.”
Lucas immediately had a research assistant prepare a memo summarizing every Texas case involving abortion or the fetus going back to the nineteenth century, and he put Texas right at the top of his short list of other states likely to generate good test cases with ideal, high-status physician plaintiffs. The aftermath of Belous had produced a widespread expectation among abortion activists that other, probably even more dramatic legal successes were not far off, and in late October ARA’s John Lassoe told Illinois’s ICMCA that because of Belous and Hall, ARA had decided “that we will not fund activity aimed at influencing legislation in those states whose legislatures will not be in session during 1970. Our feeling is that, by 1971, legislative action may be irrelevant.”68
Then, on November 10, came a second and wholly unexpected legal breakthrough almost as momentous as Belous: U.S. District Judge Gerhard A. Gesell dismissed the pending criminal prosecution of Washington’s Dr. Milan Vuitch on the grounds that the District of Columbia’s antiabortion statute—unchanged since 1901—was unconstitutionally vague. The D.C. law—allowing abortions that were “necessary for the preservation of the mother’s life or health”—was significantly broader than most antiabortion provisions, but the word “health,” just like “necessary” and “preserve” in Belous, was unacceptably vague, Gesell ruled. “There is no clear standard” for a doctor to follow, and hence the D.C. law “fails to give that certainty which due process of law considers essential in a criminal statute.” Gesell cited Griswold and Loving to document what he termed the “increasing indication in decisions of the Supreme Court … that as a secular matter a woman’s liberty and right of privacy extends to family, marriage and sex matters and may well include the right to remove an unwanted child at least in early stages of pregnancy.” Gesell went on to say, however, that “the asserted constitutional right of privacy, here the unqualified right to refuse to bear children, has limitations. Congress”—which had direct legislative authority for District of Columbia statutes—“can undoubtedly regulate abortion practice in many ways, perhaps even establishing different standards at various phases of pregnancy.” A new D.C. abortion statute, Gesell indicated, would almost certainly have to be prepared.
Gesell’s ruling was a significant victory for the beleaguered Dr. Vuitch, but much more importantly it was also a second highly publicized judicial endorsement of the litigation strategy embodied in Hall. Like Belous, Vuitch indicated that the judicial climate—like other expert opinion before it—was rapidly evolving. A prominent New York Times story emphasized that abortion attorneys such as Lucas were increasingly optimistic about an eventual victory in the Supreme Court, and Times court correspondent Fred Graham stressed that more and more activists “are coming to view abortion as a fundamental right.” Vuitch himself—a fifty-four-year-old native of Serbia who had attended medical school in Hungary before marrying an American woman and immigrating to the United States in the mid-1950s—had started performing abortions in the D.C. area in 1962, soon after receiving his first American medical license. Abortions had become his full-time specialty in 1964, and in the ensuing five years Vuitch had been arrested more than a dozen times in Maryland, Virginia, and Washington. Aside from one conviction in Montgomery County, Maryland, four months earlier that was now on appeal, Vuitch otherwise had never been found guilty, even though he readily admitted to performing anywhere between ten and twenty abortions a day, five days a week. Until his D.C. arrest eighteen months earlier, Vuitch had been a mainstay of the east coast referral network, and now with Gesell’s voiding of the D.C. statute, Vuitch was able to return to a high-volume operating schedule in an even more open manner than before.69
The Vuitch decision significantly hastened the litigation plans that had gotten started in a number of states in the nine weeks since Belous. New Jersey attorney and ACLU member Richard “Dick” Samuel had agreed right after Belous to help the state ACLU affiliate handle a federal appeal for an imprisoned doctor, Sherwin H. Raymond, whose 1967 abortion conviction had been affirmed on appeal and then not accorded review by the New Jersey Supreme Court. A number of attorneys from around the state who were interested in mounting a broader case were brought together with both Samuel and Roy Lucas by state ACLU executive director Stephen M. Nagler, and a group of Princeton women who had been actively interested in abortion repeal for more than a year were also drawn into the effort. In mid-December the ACLU publicly announced its intentions, and by the end of 1969 Samuel, Nagler, and Lucas had made significant headway in preparing an actual case for filing sometime early in 1970.70
In Iowa the state Civil Liberties Union cited Belous in announcing its intent to look for an attorney to file an abortion suit, and Illinois’s ICMCA likewise referred to the California decision in saying that it was considering a constitutional case. An ACLU-affiliated lawyer in Charlotte notified the national office that he would soon initiate a case against North Carolina’s 1967 reform law, and in Colorado Dick Lamm, who had discussed with Lucas at the mid-October ARA meeting in New York the possibility that at least one case should be brought against a reform statute, found that several physicians at the University of Colorado Medical School were quite willing to take part if Lamm would bring a federal challenge against his own 1967 reform law. The doctors, Lamm told Lucas, were “a particularly prestigious group” with “great influence in the entire Rocky Mountain area,” and a case brought in their names, Lamm believed, would have a “vast influence on the entire area.” Lamm’s view was in full accord with Lucas’s own firm belief that prominent physicians were the best possible plaintiffs to take before federal judges, and Lamm likewise now also believed, as he wrote in the nation’s leading magazine for lawyers, that Griswold’s right to privacy “would seem to apply with equal force to laws that restrict the availability” of abortion. Even a therapeutic reform statute, Lamm said, “invades the sacred realm of marital privacy by denying married couples the right to plan the future of their family.” Asked by a Denver journalist to explain his planned constitutional challenge to the very law he himself had sponsored less than three years earlier, Lamm said that “From the beginning, I have believed that abortion should be a strictly private, medical decision between a woman and her doctor.” Just as with Bob Hall and Alan Guttmacher, the reformers had indeed become the repealers.71
In Seattle, where the obstetrics and gynecology department at the University of Washington Medical School had quietly initiated an abortion referral service, Sam Goldenberg, the leading activist in Washington Citizens for Abortion Reform (WCAR), had turned his thoughts toward a possible court case after attending the same mid-October ARA meeting in New York where Hugh Savage and Dick Lamm had both spoken with Roy Lucas. Goldenberg raised the possibility with Seattle attorney David Hood, who quickly agreed that Belous and now Vuitch indicated that a court case in all likelihood would succeed in Washington as well. Four days later the Seattle press announced that a physician in suburban Renton, Dr. A. Frans Koome, had notified the governor that he was performing abortions and intended to continue, and amidst the ensuing public hoopla it quickly became clear that neither law enforcement nor medical authorities were eager to tackle Dr. Koome. No witnesses willing to testify against him could be found, and the Renton police chief, who perchance was Koome’s next-door neighbor, told one Seattle reporter that Koome was “a good medical man.” Some observers interpreted the all-but-explicit tolerance of Koome as a clear sign that most officials believed that some sort of significant liberalization would indeed be approved by the 1970 legislature, but WCAR’s principal legislative champion, State Senator Joel Pritchard, was “pessimistic” as to whether the legislature would approve a simple repeal bill. Attorney Hood, with Goldenberg’s blessing, began recruiting willing doctors as potential plaintiffs, but in mid-December Goldenberg and his WCAR colleagues decided—in part because of cost worries—to hold off on immediate preparation of a suit until actual legislative prospects could be assayed with the opening of the 1970 session in January.72
The aggregate impact of Belous and Vuitch was also readily apparent outside the confines of litigation strategy. A host of additional medical groups and associations endorsed repeal during the fall months, and a mid-November Gallup poll found that 40 percent of respondents—including 31 percent of Roman Catholics—now endorsed a woman’s access to legal abortion “anytime during the first three months” of pregnancy. A widely publicized survey of more than twenty-seven thousand American doctors revealed that more than a majority now backed repeal, and Alan Guttmacher, speaking to a mid-November meeting of the Minnesota Council for the Legal Termination of Pregnancy, told the group that with the prospects for the legal demise of old abortion laws now so bright, “you were probably lucky” that a reform bill failed to pass in the 1969 Minnesota legislature. New York assembly members Franz Leichter and Connie Cook announced that they would again introduce a repeal bill in the 1970 legislature, and press coverage noted that while ten months earlier they had been the only two members to publicly support repeal, their 1970 bill would be cosponsored by more than twenty additional colleagues, including assembly Democratic minority leader Stanley Steingut. An optimistic Leichter told reporters that “we have a good chance” of success, and noted that since Hall would be heard sometime that coming spring, perhaps “a race might develop on whether the court or the Legislature will act first.”73
Roman Catholic opponents of liberalization openly acknowledged that Belous and Vuitch had placed them very much on the defensive. The Jesuit magazine America argued that fetuses ought to be given a major role in defending antiabortion statutes against court case challenges, a role reaching well beyond simply written arguments in amicus briefs: “What the unborn child needs is the additional right to present evidence and to cross-examine the opposing witnesses.” Catholic legal scholar John T. Noonan, Jr., the most prolific opponent of abortion liberalization, acknowledged that “the shift in influential sentiment is palpable” but tried to insist that Griswold was of no constitutional relevance to the abortion issue since “the usual statute restricting abortions does not affect the sexual relations of husband and wife.” Seeking to propagate a quite literal interpretation of Griswold, Noonan argued that “Prevention of abortion does not entail … state interference with the right of marital intercourse, nor does enforcement of the statute require invasions of the conjugal bedroom.”74
In the aftermath of Vuitch, however, repeal proponents began to think about providing abortion services in a way that would represent a dramatic expansion of the referral network operation. A doctor friend of Bob Hall’s, William Rashbaum, proposed to both Hall and Alan Guttmacher that a group of interested New York physicians set up a “private, non-profit medical facility” under the ostensible sponsorship of the Clergy Consultation Service. It would offer outpatient abortions for about one hundred fifty dollars to women whose pregnancies were no more than ten weeks along, and each abortion would be endorsed in writing by two or more doctors on pro forma psychological grounds. Hall’s initial reaction was “enthusiastic,” although he envisioned it would take some months to raise the necessary start-up funds and obtain and furnish appropriate facilities, and the clergy response was enthusiastic as well. Larry Lader and his NARAL colleagues were hoping to take advantage of the Gesell ruling by creating a similar facility in Washington that would expand upon the flourishing practice of Dr. Vuitch, but the knowledge that the government intended to appeal Gesell’s decision to the Supreme Court inhibited any other D.C. physician from joining the NARAL plan. Alan Guttmacher, however, was even more interested than Bob Hall in the possibility of opening a nonlegal clinic in New York sometime in early 1970, and just before Christmas he sent out a letter to some thirty physicians saying that such an idea was in the “very early” planning stage and that he wanted to sample “the attitude of the leaders of the New York medical profession” concerning such a venture. “If enough of you approve,” Guttmacher told his colleagues, “the next hurdle would be to find out the attitude of the” district attorney right after the first of the year. Assemblyman Leichter had perhaps seemed prescient when he had wondered out loud as to whether the Hall court or the state legislature would act first to void the existing New York statute, but now it appeared that there might be a third route to repeal—essentially Dorothy Kenyon and Morris Ernst’s old idea of nullification—as well. Having moved from reform to repeal, now Alan Guttmacher was willing to champion an approach that went well beyond simply signing on as a named plaintiff in a federal court suit.75
But federal litigation was where almost all of the activists believed the real breakthroughs would come, and as Roy Lucas surveyed the national scene in December 1969, he was more inclined than ever to think that Texas, along with New Jersey, might be the best state from which to generate a Supreme Court companion case or two for Hall. The Gesell decision, and the naming of the New York panel, Lucas told Hugh Savage, “make me more optimistic about further cases. I hope that your interest has not waned, and that you will be able to participate in a test case yourself.” On December 4 Lucas and Savage spoke by phone, and Lucas explained how Texas’s location in the Fifth Circuit—whose judicial climate was generally regarded as one of the most liberal and innovative of all ten regional federal court circuits—could very well prove to be a major plus. Besides Savage himself, Lucas said, they would need “two or three other physicians from the Fort Worth-Dallas area who share your views about the need for substantial alteration or repeal of the present laws as to physicians.” “Each of you must be willing to take the position that: (a) the present law is unclear to you in application; (b) because of the present law you have to refuse to advise and treat women who request interruption of pregnancy; [and] (c) a change in the law would substantially affect your advice and treatment.” The cost of such a case, including fees for Lucas and a Texas attorney, would come to perhaps fourteen thousand dollars at the three-judge district court stage and then another nine thousand dollars when it reached the Supreme Court. “The suit should probably be filed no later than mid-March if it is to reach the Supreme Court for consideration in the fall of 1970,” Lucas advised in a follow-up letter recapping their discussion. “It would also be possible, and preferable, to file the case late in January.”
Two days after his long conversation with Savage, Lucas enthusiastically told NARAL executive director Lee Gidding that a Texas case was definitely in the works. If they were able to file it expeditiously enough, by late January or early February, a timely three-judge panel decision might be ready for Supreme Court review by the fall of 1970, when the high court might very well be considering both the government’s appeal of Vuitch and an appeal of the initial decision in Hall. Lucas told her that the Texas case would be particularly valuable “because it concerns establishment people” and because filing it in the federal judicial district that included Dallas and Fort Worth almost certainly meant that one of the three panel members would be a woman jurist, Sarah T. Hughes, known to millions of Americans as the judge who had administered the oath of office to Lyndon B. Johnson on November 22, 1963. The other two members, Lucas explained, would be selected by the chief judge of the Fifth Circuit, John R. Brown, a former Houston lawyer and an acquaintance of Savage’s who had sat on the appellate court for almost fifteen years and who was well-known, Lucas said, for having written “some of the best civil rights decisions in the South.” For these reasons, Gidding noted, “Roy is convinced that this case will be won.”
During the ensuing three weeks it also became clear that in addition to ideal plaintiffs and extremely promising judges, Texas could also offer good and eager local counsel for an abortion test case. Just three days after talking with Gidding, Lucas received from ASA’s Jimmye Kimmey a copy of a letter from a Texas attorney handling a criminal appeal for a physician who had been convicted of abortion six months earlier, Dr. C. W. Thompson. The Thompson appeal, his lawyer said, contained “all the necessary elements to support constitutional arguments” should the abortion litigators be interested in coming in as amici and seeking to make it a test case.
Two weeks later Kimmey forwarded Lucas a second letter from another Texas attorney, Roy L. Merrill, Jr., who had written to ASA, NARAL, and the ACLU on behalf of a Dallas-area doctor, James Hubert Hallford, who had been indicted on two felony counts of having performed abortions in his small-town office in Carrollton, Texas. Merrill and his senior partner, well-known Dallas defense attorney Fred Bruner, knew about Belous and Vuitch, and hence, Merrill explained, “We are planning to challenge the constitutionality of the Texas laws concerning abortion” as part of Hallford’s defense. Merrill asked the New Yorkers for whatever information and advice they could provide, and an enthusiastic Roy Lucas, replying on their behalf, eagerly volunteered his help. “I have undertaken already a great deal of research on the Texas law for a possible federal court declaratory judgment action there, in Dallas or Fort Worth.” Moreover, Lucas explained, “Dallas was once a second home to me,” during his two summers of student work at Texas Instruments. Proceeding with a Texas case made ideal sense strategically, given Dr. Savage, Judge Hughes, Judge Brown, and now attorney Merrill, and it might well be enjoyable as well as successful.
And indeed a constitutional challenge to the Texas abortion statute would be filed in Dallas in early 1970. But it would not emerge from the litigation strategies of Lucas or other experienced attorneys, nor would it be filed on behalf of Hugh Savage or other “establishment” physicians. For unbeknownst to Lucas, to Merrill, and to Savage, two other groups of Texans were simultaneously preparing to file a federal test case, and out of their combined energies would come the decisive attack upon the constitutionality of Texas’s antiabortion statute and—eventually—almost all others as well.76