Academic journal article Albany Law Review

Abortion before and after Roe V. Wade: An Historical Perspective

Academic journal article Albany Law Review

Abortion before and after Roe V. Wade: An Historical Perspective

Article excerpt


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

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

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

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

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

First in New York in the 1920s,(16) then in Massachusetts and Connecticut in the late 1930s,(17) those early birth control clinics became the target of predominately Roman Catholic religious forces which were unwilling to tolerate the publicly advertised availability of birth control services. …

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