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Breaking the Law to Win Abortion Rights (Part 1)

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A small black box truck with its side painted white and “ABORTION PILLS” emblazoned on it in huge black letters sits in front of a colorful mural titled “The City of Soul,” featuring four stylized faces.

Public defiance of bans on abortion and contraception helped bring them down.

You can read Part 2 of this article here.

Anticipating the overturn of Roe v. Wade, lots of people are quietly gearing up to provide abortions outside the medical and legal system, generally with abortion pills. The technology is new, but underground abortions are not. Millions of women had illegal procedures in the century when abortion was illegal all over the U.S., between 1873 and 1973. The Guttmacher institute estimates that between 200,000 and 1.2 million abortions were performed each year in the 1950s and ‘60s.

But a century of underground lawbreaking didn’t change the law. Only public action did that, including publicly breaking contraception and abortion laws in order to change them. This history suggests some risky but potentially powerful strategies for us to use now.

Secret vs. public

Secret provision of abortion may carry legal risks for all involved, but it has immediate rewards. An abortion instantly gives someone a measure of control over their life, a big feminist effect for something so simple. Abortion patients may even join the movement through contact with underground efforts. In the early 1970s, Jane, the now-famous underground abortion service in Chicago, provided women’s liberation literature along with respectful care during 11,000 safe abortion procedures.

In 1963, Carol Giardina saw so many classmates drop out due to pregnancy that she started an abortion referral service out of her dorm at the University of Florida. Giardina recalled that she did referrals “without much thought of the politics of it until 1968 when the politics of it were made clear to me in the Women’s Liberation Movement. I continued the referrals, but began fighting publicly for abortion and women’s liberation.”

As Giardina suggests, it was only when feminist organizers made abortion a public, political issue that they were able to force the power structure to make abortion legal. First, they had to make the hidden public. After discovering in consciousness-raising meetings that many of them had had illegal abortions—and that everyone was terrified they’d need one—women’s liberationists made their discoveries about their oppression public, recruiting millions. They invaded abortion reform hearings to give their own testimony, conducted speak-outs detailing their illegal abortions, and filed lawsuits on behalf of women affected by the abortion laws. They swept away tepid reforms with their demand for repeal of all abortion laws. Their grassroots theory leadership and mass action made abortion legal in New York State by 1970, a model followed by the Supreme Court in Roe v. Wade three years later.

Among the many strategies the movement used was publicly breaking the laws to change them. Their civil disobedience followed the example of the birth control movement, which at the time was still fighting to free up contraceptive distribution everywhere, and to legalize it in a few holdout states. In Connecticut, doctors were prohibited from providing contraceptives to their patients, so in 1961 Estelle Griswold opened a clinic in New Haven to do just that. The police shut it down, but her case went to the Supreme Court and established the right to contraception for the married in Griswold v Connecticut (1965).

Acts of civil disobedience by birth control campaigner Bill Baird secured this right for the unmarried. Baird was arrested when he handed out packages of contraceptive foam and condoms to unmarried college students at a talk at Boston University in 1967. In Eisenstadt v Baird (1972), the Supreme Court struck down the Massachusetts law.

Army of Three

Starting in 1962 in northern California, pioneering abortion campaigner Patricia Maginnis, who died last year at 93, relentlessly distributed referral lists of abortion providers in Mexico, Sweden and Japan. This violated state and local laws. Her goal was not service but arrest, prosecution, and overturning the law. Maginnis and two comrades she recruited through her activities, Rowena Gurner and Lana Clarke Phelan, were known as the “Army of Three.” A San Francisco arrest for “unlawfully advertising abortion” got rid of that local statute. Escalating, they advertised and taught do-it-yourself abortion classes in 1966 and 1967, always inviting the police. After many tries, Maginnis and Gurner were finally arrested mid-class. Their case eventually overturned the California code that muzzled speech on abortion.

Following Army of Three techniques, pioneers in the Women’s Health Movement, led by Carol Downer and Lorraine Rothman, toured the country teaching classes in menstrual extraction. Rather than enduring a period with several days of bleeding, women learned to use a device of Rothman’s design on each other which suctioned out the menstrual blood. If you happened to be pregnant, this could provide an early abortion. Teaching the system was not without legal risk. At one point Downer was arrested and put on trial for practicing medicine without a license for treating someone’s vaginal yeast infection with yogurt. Downer beat the charges in a widely-publicized trial that established some legal space for women’s self-help clinics.

Putting pressure on the laws

The 1950s and ’60s saw a police crackdown on doctors who performed abortions. Dozens of skilled practitioners were arrested or had their licenses revoked, and many were jailed. A few brave doctors practiced openly, challenging the laws. Dr. Milan Vuitch, a Yugoslavian immigrant unconcerned with the approval of the medical establishment, was arrested twice and exonerated twice. After these hassles, he decided to do abortions openly in Washington D.C., broadly interpreting the health exception in the D.C. law. Arrested a third time, he managed to get the law overturned, effectively legalizing abortion in D.C. in 1969.

Referrals were the typical way non-doctors broke the law. In 1966, Margaret Sanger’s biographer, Lawrence Lader, published Abortion, a pioneering history of the practice for which he interviewed doctors who gave abortions clandestinely. Women were soon asking Lader for the doctors’ phone numbers, which he provided. At a press event for his book, he let slip that he was providing this service, and soon he was spending half his workdays fielding urgent inquiries and maintaining doctor lists. Lader went on to co-found the National Association for Repeal of Abortion Laws (NARAL) with Betty Friedan and others, and wrote Abortion II, an important 1973 history of the movement.

Radical clergy, led by Reverend Howard Moody at Judson Memorial Church in New York announced on the front page of the New York Times in 1967 that ministers and rabbis would provide abortion referrals to anyone who needed them as the Clergy Consultation Service on Abortion. “Mr. Moody acknowledged that the project involves ‘some legal risk,’” the Times noted, “but he added: ‘We are not willing to admit that it is illegal.’” The service eventually grew to 3,000 clergy in 40 cities. They tended to refer across state lines, and also to Puerto Rico and England, hoping this would slow down prosecutors.

Nonetheless, in 1969 Cleveland minister Robert Hare was indicted for aiding and abetting a criminal abortion in Massachusetts; he was eventually exonerated. In 1970, Rabbi Max Ticktin, director of Hillel at the University of Chicago, was arrested and his case became a student rallying point. The indictment came from Michigan where furor over the case strengthened demands for Michigan to repeal its law entirely.

By the early 1970s, feminist groups at most colleges were providing abortion referrals. The school newspaper at the University of Florida published a referral list in 1972. When the printer refused to print that page, staff inserted the list in every copy. University administrators kicked the paper off campus for this crime. To this day, the Independent Florida Alligator has no official ties to the university.

In Chicago, the Jane abortion service became public involuntarily, when a police raid led to seven arrests in 1972. Each woman was charged with 11 counts of abortion and conspiracy to commit abortion, a possible 110 years each. Despite the arrests, the service continued to provide abortions until Roe made it possible to open abortion clinics in Chicago. Their charges were dropped after the Roe decision.

Featured image: #ShoutYourAbortion brought the #AbortionPillsForever message to the streets of Jackson, MS in early 2022. A QR code on the back of the truck led to ShareAbortionPill.Info, a site with more info about the pills. The action recalled Estelle Griswold’s 1961 arrest for providing contraception to married couples. Her case went all the way to the Supreme Court and helped end bans on contraception.

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Abortion Rights
Reproductive Justice
Roe v. Wade

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