Founding Feminists: January 22, 1973

Founding Feminists is FMF’s daily herstory column.


A stunning and landmark victory today in the 152-year battle over abortion rights in the United States.

Thanks to a Supreme Court ruling in the case of “Roe vs. Wade,” American women have not only regained the same right to abortion they had in Colonial Times and Early America, but have had their right to decide whether or not to carry a pregnancy to term affirmed as something protected by the U.S. Constitution.

In the words of Justice Harry Blackmun, writing for the 7 – 2 majority: “The right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

Justice Harry Blackmun

But today’s decision, significant as it may be, is only one part of a long battle for abortion rights, fought on many fronts and using a number of different approaches. So, though Justices Blackmun, Burger, Douglas, Brennan, Stewart, Marshall and Powell deserve praise for their ruling, far more than seven people can share credit for today’s victory. It took the combined efforts of many others over many years to create the framework in which this historic ruling could be made.

The first anti-abortion laws were passed in a medically primitive, pre-antiseptic era, when it was a dangerous procedure – even more risky than childbirth. The first law restricting abortion in the U.S. was passed in 1821, when Connecticut outlawed the procedure after “quickening” (the time the movements of a fetus can be felt, which can be around 16 – 18 weeks). In 1828, New York became the first state to ban early abortions, but there was no rush by other states to follow suit. In 1840, abortion was still fully legal in 18 of the 26 states.

In 1859, the American Medical Association (all male until 1876) launched an anti-abortion drive, and a wave of new laws prohibiting abortion followed. No woman in America could vote at the time, and until 1893, when women in the State of Colorado won the vote, they had voted in only two sparsely-populated Territories, so their views were of no concern to State Legislators during the time these strict bans were passed.

Many other factors were involved in the criminalization of abortion. Falling birth rates among American-born Caucasian women may have been a racist and xenophobic consideration for some. Since the feminist movement was making meaningful gains by the 1860s, there may also have been a “backlash” factor among Victorian men who wanted to reinforce childbearing and child raising as woman’s traditional – and only – roles.

In 1873, things went from bad to worse. Congress passed the Comstock Act, which made dissemination of anything related to abortion or birth control through the mails a Federal crime, punishable by up to five years’ imprisonment. Many states passed equally punitive laws banning contraception and abortion, or even giving out information about either.

But prohibitionist policies didn’t stop abortions from being done, only from being done in a legal, well-regulated manner. In 1910, it was estimated that 80,000 illegal abortions were being performed annually in New York City alone. In 1935, Dr. Isadore Kahn, Medical Examiner for the New York City Board of Health, said that 75 New York City abortionists were doing a combined total of 600 illegal operations each day, and estimated that the total number done in the city was about 250,000 a year. One fourth of the patients admitted to Bellevue Hospital obstetric wards that year were suffering from poorly-performed illegal abortions. In 1936, Dr. Frederick Joseph Taussig did a landmark study and carefully estimated that there were almost 700,000 abortions each year in the U.S., resulting in the deaths of 8,000 women. Throughout the 1940s and 1950s, illegal abortion was one of the biggest “rackets” in the country.

The move toward re-legalization began in 1959, when the American Law Institute framed a model law which would permit abortion if continuation of the pregnancy “would gravely impair the physical or mental health of the mother,” or if the doctor believed that “the child would be born with grave physical or mental defects,” or if the pregnancy resulted from rape or incest.

The case of Sherry Finkbine, who had to go to Sweden to get an abortion in 1962 after discovering that Thalidomide, which she had been taking as a sleep aid, caused severe fetal deformities, also brought attention to the extreme restrictions that permitted only about 8,000 of the estimated one million abortions performed annually in the U.S. to be done safely and legally.

By the mid-1960s, a re-legalization movement had begun to emerge, and it rapidly gained support. In 1965, the A.C.L.U. lent its prestige to the movement, in 1966 the Association to Repeal Abortion Laws in California was founded, and in 1967, full re-legalization was endorsed by the recently-formed National Organization for Women. That same year, Colorado, California and North Carolina reformed their laws along A.L.I. guidelines. Georgia and Maryland followed in 1968, with Arkansas, Kansas, Delaware, Oregon and New Mexico doing the same in 1969.

But 1970 was a true turning point in the battle. Hawaii totally repealed – not just “reformed” – its abortion law. The State of New York made abortions up to 24 weeks of gestation available to anyone, with no residency requirement, or the kind of humiliating procedure imposed in many states which required a woman to plead for permission before a panel of doctors – virtually all of whom were male. In a clear indication that the public was ready for change, Washington State’s anti-abortion law was tossed out by voters in a referendum.

By 1972, 64% of Americans were telling Gallup pollsters: “The decision to have an abortion should be made solely by a woman and her physician.” Though the number of abortions performed illegally was always an estimate, the number done safely and legally can be known, and has skyrocketed recently due to those who worked to reform or repeal abortion laws in their home states. That figure of about 8,000 done legally out of a million performed each year in the mid 60s rose to 22,700 in 1969; 193,500 in 1970; 262,807 in 1971 and 586,000 last year – outnumbering illegal procedures for the first time in a century.

Naturally, these developments have caused a major backlash among anti-abortion groups, and both sides had been preparing for a major escalation of their actions this year. But with the Supreme Court declaring today that a woman has a Constitutional right to terminate a pregnancy, and that states may only deny this right during the third trimester, when very few are performed, everything has suddenly changed.

Today’s ruling is truly a landmark decision, and one which should be celebrated by all who believe in a woman’s right to make reproductive decisions for herself, instead of having them made for her by far away – and overwhelmingly male – legislators. But as comforting as it might be to think that the battle for reproductive rights is over, nothing that’s happened in the past few years suggests that the opposition will graciously concede defeat and go away.

The nation’s disastrous experiment with abortion prohibition has finally been ended, but all Supreme Court Justices are eventually replaced, and a switch of only three votes would be enough to overturn “Roe.” Even if it stays on the books, there’s no doubt that every imaginable attempt to chip away at it will be made by opponents, who are as dedicated to doing away with the right to legal abortion as proponents are to protecting it.

The battle to win this basic right has been fought by those who grew up without it. But the task of insuring that abortion and birth control are always both legal and accessible must eventually fall to those too young to have any memory of back-alley abortion mills, run by incompetent or predatory practitioners, or being driven to an attempt at self-abortion. But if those who never had this right could fight so hard to win it, then surely, those who will have had the privilege of taking reproductive choice for granted all their lives will fight even harder for it if one day they are in danger of having it taken away.

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