The struggle that won legal abortion

January 22, 2013

On the 40th anniversary of the Roe v. Wade decision that guaranteed abortion rights, Leela Yellesetty tells the story of the movement that prodded the justices to act.

IN FEBRUARY 1969, leading feminist and author Betty Friedan addressed the founding conference of the National Association for the Repeal of Abortion Laws (NARAL, later renamed the National Abortion and Reproductive Rights Action League, and now known as NARAL Pro-Choice America):

Yesterday, an obscene thing happened in the city of New York. A committee of the state legislature held hearings on the question of abortion. Women like me asked to testify. We were told that testimony was by invitation only. Only one woman was invited to testify on the question of abortion in the state of New York--a Catholic nun. The only other voices were those of men.

It is obscene that men, whether they be legislators or priests or even benevolent abortion reformers, should be the only ones heard on the question of women's bodies and the reproductive process, on what happens to the people who actually bear the children in this society.

Apparently eager to revive an old tradition, when the U.S. House Committee on Oversight and Government Reform convened a hearing on the requirement in the new health care law that contraception be covered in insurance policies, legislators invited an all-male panel to testify.

Marching for legal abortion in the era before Roe v. Wade
Marching for legal abortion in the era before Roe v. Wade

In 2012. How did we get back here?

Supporters of reproductive rights breathed a huge sigh of relief when most of the worst anti-woman candidates went down in flames in the last election, along with right-wing ballot measures. Yet 40 years since abortion was legalized with Roe v. Wade--and 47 years after the Supreme Court decision legalizing birth control--reproductive rights remain under a sustained and relentless attack.

Over the course of 2012, 42 states and the District of Columbia enacted 122 provisions related to reproductive health and rights, the Guttmacher Institute reported. One-third of these new provisions, 43 in 19 states, sought to restrict access to abortion services. Today, According to Guttmacher, "55 percent of U.S. women of reproductive age now live in one of the 26 states considered hostile to abortion rights."

For millions of women across the country, access to safe, legal abortion is no longer a reality. The inevitable consequence has been the rise of DIY abortions and an increase in women going to emergency rooms after suffering complications from back-alley procedures.

In the past 40 years, the anti-choice movement has made dramatic progress, not only in the laws, but in popular consciousness--it has successfully reframed the issue into a debate on the rights of fetuses, not those of women. The right's agenda doesn't stop with abortion, but extends to abstinence-only education, restrictions on birth control and a general desire to return to 1950s-era gender relations. This is not an agenda shared by the majority of Americans, and yet it continues to gain ground.

It wasn't always this way. On the 40th anniversary of Roe v. Wade, it's worth reflecting on the context in which this landmark court decision was won--and what kind of lessons pro-choice activists can learn for today's battles.

ROE v. WADE marked a tremendous victory for women's ability to control their own bodies. It literally saved an untold number of lives--of women who were no longer forced to seek out unregulated providers or attempt dangerous methods of self-inducing, such as coat hangers or douching with bleach.

The death toll from unsafe abortions before Roe is unknown, but some estimates put it as high as 10,000 each year. A University of Colorado study done in the late 1950s reported that 350,000 U.S. women experienced postoperative complications from illegal abortions every year.

The victims of unsafe abortion were disproportionately poor women and women of color, who lacked the resources of their wealthy and better connected counterparts. In New York City, before 1970, when abortion was legalized there, Black women accounted for 50 percent and Puerto Rican women for 44 percent of all deaths from illegal abortions.

By the early 1960s, there was a growing sentiment among physicians for abortion law reform, in part as a response to the scores of women flooding into emergency rooms and in part from the fear of being prosecuted for performing abortions. Physicians were joined by liberal members of legal establishment, as well as various family planning and population control organizations. These groups took a slow and cautious approach, focused on education and lobbying, and appealing primarily on the basis of physicians' rights to professional autonomy.

In the years to follow, however, another factor eclipsed the others, altering the terms of the debate.

The women's liberation movement of the late 1960s and early '70s was an outgrowth of an overall radicalization in society, kicked off by the civil rights movement. At its height, the women's liberation movement was about far more than just abortion. It involved a diverse array of activists, organizing around many demands, from equal employment to fighting sexual objectification.

Naturally, many in the movement saw lack of control over reproduction as a central feature of women's economic and social oppression. While the leadership of some of the main women's groups, dominated by white, middle-class women, were cautious about embracing the abortion fight, they were outvoted by their members.

The popular slogan of this era, "Free abortion on demand," reflected a recognition that legalization alone wasn't enough if poor women couldn't afford to get access to abortions. Freedom of choice also meant being able to have children if one desired, which meant demanding access to free child care. The movement embraced demands against the ugly history of forced sterilization of women of color.

Nonetheless, legalization of abortion became a central issue that the movement rallied around. Activists adopted tactics of direct action and civil disobedience from the civil rights movement.

One of the most influential and visible forms of direct action came in the form of abortion referral services. Patricia Maginnis founded the Society for Human Abortion (SHA) in California in 1962 and became one of the first grassroots advocates for abortion law repeal.

Soon, women began approaching her, asking for the names of physicians who would perform abortions, so she began researching providers in Mexico and publicly distributed lists with their information. She then began distributing leaflets and conducting "do it yourself" abortion classes, which were so popular that they were soon taking place across the country.

As SHA leader Lana Clark Phelan reflected, "Really, our major accomplishment was in talking about abortion--saying the word out loud rather than using euphemisms. And from our little first meetings, there was such an influx of interest. I would get more than 500 letters a day asking for help."

In Chicago, members of the Women's Liberation Abortion Counseling Service, which became known as "Jane," took their referral service one step further and learned how to perform abortions themselves, which they could offer to low-income women at reduced cost. In the process, they created an alternative feminist health care service dedicated to empowering women to take control of their own bodies.

Both SHA and Jane saw their work as not only providing a needed service, but making a powerful political statement.

Despite the anti-choice movement's attempt to claim religion for their side, religious groups were also central in the abortion referral movement. The Clergy Consultation Service on Abortion was formed in 1967 by Rev. Howard Moody and other clergy members, many of them previously active in the civil rights movement. The response was so great that within a year, it had expanded to a national network, involving thousands of clergy and rabbis.

BY THE early 1970s, momentum was growing in favor of women's liberation, and abortion rights in particular. In 1970, a national Women's Strike for Equality brought out more than 50,000 women across the country--among the rallying points was free abortion on demand.

One important element of the movement was making visible the experiences of women who had abortions. The first abortion "speak-out" was held by the New York feminist group Redstockings in 1969, where women spoke publicly about their illegal abortions. Similar speak-outs soon took place in cities across the country.

As the historian Leslie Reagan wrote:

Most important for changing the course of the debate and politics, feminists designated women as the experts on abortion...The speak-outs made clear that abortion was not a personal problem, but a problem for all women arising from the double standard. As women shared their stories, they created new knowledge and educated politicians, the medical profession, the judiciary and the general public about why women needed abortions and the problems of abortion, both legal and illegal.

Activists targeted the government and other institutions to pressure them to take a stand in favor of abortion rights. The Restockings speak-out, for instance, was called as a "counter-hearing" to the nearly all-male hearing in the legislature that Friedan had criticized. As the Michigan legislature debated abortion reform, activists in Detroit held a "funeral march" to protest the deaths of women killed in back-alley abortions.

Members of the Chicago Women's Liberation Union (CWLU) and the Women's International Terrorist Conspiracy from Hell (WITCH) disrupted the annual convention of the American Medical Association (AMA), demanding that it support repeal of abortion laws. When the AMA failed to do so, the WITCHes "hexed" the AMA. According to a CWLU report "the feeling of exhilaration and sisterhood was so rewarding that the WITCHes decided to hex the business establishment on a regular basis."

By 1971, pressure had grown so great that President Richard Nixon felt compelled to come out with a statement affirming his opposition to abortion. To this statement, the New York Women's Strike Coalition responded, "We will grant Mr. Nixon the freedom to take care of his uterus if he will let us take care of ours."

This backdrop is crucial for understanding how Roe v. Wade (and its companion case Doe v. Bolton) came to be decided. While the number of people directly participating in the women's liberation movement was relatively small, their actions had a tremendous impact on popular consciousness. By 1976, a Harris survey reported that 63 percent of American women supported "efforts to strengthen and change women's status in society."

In a chapter in the book Abortion Wars, Amy Kesselmen provides a vivid illustration of how the women's liberation movement had a direct impact on court decisions.

Kesselmen describes the case of Abele v. Markle, which challenged Connecticut abortion laws--the group Women Versus Connecticut applied an activist approach to winning the case, recruiting as many plaintiffs as possible. It organized speak-outs and organizing meetings across the state and mobilized large turnouts at all the court hearings. In all, more than 800 women who had abortions signed up as plaintiffs.

Attorney Nancy Stearns described the strategy:

I am fully convinced now, after listening to more and more judges, that if we present it as a matter of law, they are going to think we are daft. We have got to drum it into their heads what we are talking about so that they can't forget...They will know that its flesh-and-blood people that they're talking about...One of these days they'll even realize that it's their daughters and wives that we're talking about, as well as all the other women they may or may not know.

All this had a direct impact on the Roe decision a year later, according to Stearns: "Blackmun's description of the physical and emotional harm to women of an unwanted pregnancy, the stigma of an out-of-wedlock pregnancy, and the problems with bearing an unwanted child bears a striking resemblance to the language used by the Connecticut court."

AT THE same time, though, Sarah Weddington--the lawyer, 27 years old at the time, who argued for the legalization of abortion in Roe v. Wade--was already identifying the outlines of the future attack on abortion rights. Reflecting later on the victory, she quoted law student Bobby Nelson who helped research the case:

Two important thoughts are with me: first, we must understand that the Supreme Court was responding not just to technical and impressive briefs or strong oral arguments on the rights of women. They were responding to the rallying of women across the nation--a rejection of women as reproductive machines and an acceptance for women as individuals capable of choice.

Secondly, we must understand that the battle has only just begun. An abortion still costs $140, more than many pregnant women can afford; few doctors have the modern equipment; most will still require the consent of a husband.

But we can begin with the token that it makes an immediate difference in the lives of many women. Now we can redirect our energies to other issues.

Weddington herself also noted the limitations of the court's decision in Roe, which only guaranteed the right to abortion in the first trimester--even though this trimester framework was nowhere put forward in the arguments of the lawyers involved in the case. This left the door wide open for the many restrictions to come.

In the immediate wake of Roe, anti-choice forces began mobilizing in full force, and they have continued ever since. One of the right's first major victories was passage of the Hyde Amendment, barring Medicaid funds from being used to pay for abortions--although they can still be used to pay for sterilization.

At the same time, the social movements of the 1960s and '70s were on the decline, and mainstream reproductive and women's rights organizations soon narrowed their focus and shifted to an "inside" strategy of lobbying and electoral campaigns. The past 40 years, during which our rights have been steadily eroded, shows that these strategies alone aren't enough.

Those of us fighting to turn the tide today face an uphill battle. But in the past few years, we've seen the promising signs of an emerging movement--from the Walk for Choice protests around the country in response to Congress' threat to defund Planned Parenthood, to the ongoing global Slutwalk movement.

As in in the '60s and '70s, these fights against sexism are taking place in a context of a general radicalization against many forms of injustice. Rather than competing, movements against inequality, war and racism can strengthen and inspire each other.

As we organize today to fight for a world in which all women are truly free to control their bodies and their own destinies, it is urgently important that we rediscover the buried history of the struggle that won legalized abortion--and equip ourselves with the many lessons from those who fought before us.

Further Reading

From the archives