TERRY GROSS, host:
This is FRESH AIR. I'm Terry Gross.
It's a big week for the Supreme Court. The court handed down a gun control decision today and is preparing to end its term, and Elena Kagan began her confirmation hearings today.
We're going to look back on a momentous Supreme Court decision that remains controversial and continues to divide America. In January 1973, the Supreme Court, in Roe v. Wade, ruled that the right to privacy protected a woman's decision, in consultation with her doctor, whether to carry a pregnancy to term.
My guest, Linda Greenhouse, is the coauthor, with Reva Siegel, of the new book "Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court's Ruling."
The book examines the arguments of abortion rights supporters and opponents in the years before Roe v. Wade, arguments made by women's groups, medical groups, religious groups, the courts and others. And the book is filled with fascinating documents that illustrate how the debate was shaped. There are plenty of historic surprises.
Linda Greenhouse covered the Supreme Court for the New York Times. She now writes and online law column for the Times and teaches at Yale.
Linda Greenhouse, welcome back to FRESH AIR. One surprise to me in your book is that the medical community, which supported decriminalization of abortion at the time of Roe, a century earlier, had spurred the criminalization of abortion. In what ways did the medical community support criminalization of abortion?
Ms. LINDA GREENHOUSE (Coauthor, "Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court's Ruling"): Well, back in the 19th century, I think there were two things happening. One, of course, abortion was quite dangerous. So there was a public health concern about abortion. Any surgery was dangerous. They didn't have sterile technique, and so anytime any medical instruments were introduced into the body, the patient was in danger.
And number two, abortions were typically performed by people who were not doctors, and so there was a bit of a competitive edge - or a kind of anti-competitive edge, you might say- to the medical profession's efforts, which succeeded in every state in the country, to make abortion a crime.
GROSS: So what changed in the 1960s or early '70s that got the medical community - meaning, in this case, the AMA - on the side of limited legalization of abortion?
Ms. GREENHOUSE: The medical impetus to start reforming the old abortion laws actually came not from the American Medical Association, but from the American Public Health Association, from the public health profession.
There is a public health doctor, Mary Calderon, who was medical director of Planned Parenthood and also very active in professional public health circles. And she wrote some influential articles depicting abortion as a serious public health issue - that is to say illegal abortion, back-alley abortion, as a serious public health issue - and basically started calling on the medical profession to take a new look at this old issue.
Abortion now could be a very safe medical procedure when done properly, under the right conditions. So the facts on the ground had changed. Women were having illegal abortions in large numbers. There was a good deal of medical bad consequences and suffering because of this, and it was really the public health docs who sounded the call.
GROSS: And it was also more - as you point out, there were also more ways of noticing high-risk pregnancies, and there was a lot of damage being done to fetuses through things like German measles and also thalidomide. Women were taking thalidomide before we knew that it caused terribly deformed babies to be born, without arms or without legs. So what impact did that have on the medical profession?
Ms. GREENHOUSE: Those things - those two facts, the German measles epidemic in the 1960s, which was known to - German measles is known to cause serious defects in a fetus when a pregnant woman contracts German measles in the first trimester of pregnancy, and there was a big epidemic.
And then this question of thalidomide, the Food and Drug Administration actually never admitted thalidomide into the country, but it was a commonly used sleeping aid in Europe.
And babies all over Europe, it was discovered, were being born with the most devastating defects, basically lacking arms and legs. And we recount this in the book. We have a document, a narrative from a woman whose name is Sherri Chessen. Then she was Sherri Finkbine, Miss Sherri of "Romper Room" in Phoenix, Arizona, in 1962.
Her husband had brought back a bottle of thalidomide, which he had gotten by prescription on a business trip in London. It wasn't very well-known in the United States. But she took this. She was pregnant with a much-wanted baby, and she then read a little article in the newspaper about this thalidomide problem that was beginning to emerge in Europe.
She called her doctor, and the doctor said oh, good grief, I need to get you an abortion. Abortion in 1962 was illegal everywhere in the country, and it was illegal in Arizona except to save the life of the pregnant woman. And, of course, her life was not in danger.
But she said, you know, people need to know about this. Other women are also in danger. And she allowed the word to get out, at which point the hospital said, oh, we can't give you an abortion now. This is all much too public. And she couldn't get an abortion anywhere in the United States.
She and her husband ended up going to Sweden, where she had an abortion, and this became a big national story. It was the cover of Life magazine, and inside the magazine were pictures of her, a very attractive young woman, and these devastated babies from Europe without arms and legs.
And I remember, as a young teen, sitting in my living room at home reading this magazine with just amazement. I had - I don't think I had ever heard the word abortion or the concept of abortion. Back in the early 1960s, people didn't talk about it. It made a huge impression on me.
GROSS: You know, on a related note, you know, we were talking about Sherri Finkbine, who had an abortion in Sweden because she couldn't get one in the United States after she found out that the thalidomide she was taking was likely to cause her baby to be born with horrible defects.
On the other side of that same predicament, you reprint a letter by Dr. Jane Hodgson, who in 1970, performed an abortion on a 23-year-old patient who had German measles early in pregnancy, which would likely lead to the fetus being born with, you know, terrible physical problems. And the Minnesota law where she lived permitted abortion only to save a pregnant woman's life. And she writes - and you have the document in there - I'm probably the only Mayo alumnus with the dubious distinction of having been arraigned and tried for committing a felony. And she refers to years of frustration in attempting to provide a high grade of medical care under an archaic and cruel law.
Were there many other doctors who you found who felt very frustrated by their inability to perform abortions because of the law?
Ms. GREENHOUSE: Yes. There were certainly doctors in the medical community who felt that, as a medical service to women in enormous distress, this was something that they wanted to be able to do.
Not many of them challenged the law openly, as Dr. Hodgson did. She was, as you mentioned, a Mayo Clinic-trained obstetrician and gynecologist in the Twin Cities in Minnesota, and she did this very openly.
She and her patient agreed that this would be a test case. And before performing the abortion, Dr. Hodgson went to federal court asking for an injunction, asking the federal court to strike down the Minnesota law. And when the court didn't respond and the pregnancy, of course, was advancing, she performed the abortion and then called the authorities and basically said come and get me.
And they came and got her, and they arrested her and they charged her. And she was convicted and she was sentenced, but the sentence was put on hold because Roe against Wade was then pending at the Supreme Court. And Roe against Wade was decided, and so obviously, her sentence was never carried out.
GROSS: One of the key phrases in the abortion debate became the right to choose, and - or that evolved into choice, pro-choice. You have a document about the early use of that phrase, and this is a memorandum by Jimmye Kimmey, somebody who I'd never heard of before your book. Tell us who she is and what she did to develop that phrase, the right to choose.
Ms. GREENHOUSE: Jimmye Kimmey was a young woman who was the executive director of an organization called the Association for the Study of Abortion, ASA, which was one of the early reform groups and was migrating in the early '70s from a position of reforming the existing abortion laws to the outright repeal of existing abortion laws.
And she wrote a memorandum framing the issue of how the pro-repeal position should be described, and this is what she wrote to her own staff as they were trying to frame a kind of a public relations position.
She said: the alternatives seemed to be freedom of conscience and right to choose. I hope someone can think of a clearly better one, but in the meantime, let me say why I think the latter preferable.
There were two reasons: the first superficial, the second less so. Right to life is short, catchy, composed of monosyllabic words, an important consideration in English. We need something comparable. Right to choose would seem to do the job. Second, more important, is the fact that conscience is an internal matter, while choice has to do with action, and it's action we are concerned with.
GROSS: That's really interesting. And so that evolved into pro-choice?
Ms. GREENHOUSE: Yes, right to choose, pro-choice. I mean, I wouldn't necessarily say she was the only one who was coming up with this, but it was an interesting document to find and the earliest that I did find that showed how the dialogue was evolving in that pre-Roe period.
GROSS: Another, I think, interesting document that you reprint in the anti-abortion side is written by Dr. J.C. Willke and his wife. He was a gynecologist. She was a nurse. They had done a lot of, like abstinence kind of work. And in 1971, they co-wrote a handbook on abortion. Tell us a little bit about their significance.
Ms. GREENHOUSE: Right, Dr. Jack Willke is a key figure in the right-to-life movement. He and his wife self-published this little book called "Handbook on Abortion" in 1971. It's in the form of questions and answers about abortion from the right-to-life point of view. And it got distributed like wildfire. It now exists in many, many editions. People can go on Google or Amazon and find it easily and translated in many languages, and it really became a Bible of the right-to-life movement.
And we were grateful to Dr. Willke for giving us permission to republish it. One reason we wanted to have a substantial excerpt from it that people on the pro-choice side have never seen it, and it's a very striking document, and his voice was and continues to be an important voice on that side.
GROSS: One of the things I found most fascinating about this was what he wrote about rape and incest, and can I just read you an excerpt? And tell me what you know about this.
One of the questions is: Is pregnancy from rape very common? And the answer is no. It is extremely rare. Question: Why is this so? Answer: If a girl is raped or subjected to incestuous intercourse and reports the fact promptly, she's usually taken immediately for medical attention. This consists of a douche, commonly a scraping of the uterus and at times doses of medication, one or all which, while done partially to prevent venereal disease, will almost invariably prevent her from getting pregnant. If the rape victim would report her assault properly, there would be, for all practical purposes, no pregnancies from rape.
Ms. GREENHOUSE: Right. What I think he's reflecting there is a fear that women would seek abortions - if there was a rape exception to an abortion prohibition, women would seek abortions by saying they'd been raped whether they had been raped or not. That's how I understand that passage.
GROSS: But he's basically describing a D&C here, scraping of the uterus.
Ms. GREENHOUSE: Yes. I guess depending on how quickly the woman presented herself for medical attention. If it's right away, there would not have been implantation in the uterus, and so what we would think of as a pregnancy wouldn't have begun.
GROSS: One of the interesting things I find about this "Handbook on Abortion" is the Willkes' attempt to deal with rape and incest. And one of the questions is: What is meant by the difficulty of proving rape? And then the next question is: You know, a lot of people say, but think of the poor girl.
And they write: True, if in fact she was actually raped against her will. As everyone knows, there are many degrees of resistance or consent on the part of a woman to the act of intercourse. It is easy for a woman rejected by a lover to then accuse him of raping her. For any kind of justice, some type of proof must be asked.
Question: What of incest? Incest is intercourse by a father with his daughter, uncle with niece, et cetera. The same dynamics mentioned above apply. Will Uncle John admit to having relations with his niece? Never.
It would be her word against his. The court might even believe her, but cannot act on it legally. Incestuous intercourse is seldom reported, and when pregnancy does occur, it is not usually reported as being from incest.
So he's totally dismissing the idea of rape or incest as being a cause for abortion, legally.
Ms. GREENHOUSE: Right. I read this as a response to the reform talk that was in the air before Roe against Wade, and some states had begun to legislatively act on it, that there should be a set of exceptions to the blanket prohibition, and rape and incest were among the exceptions that legislatures were considering.
And this kind of language in Dr. Willke's "Handbook on Abortion" is a pushback against that.
GROSS: The feminist movement, of course, was a very potent part of the abortion debate. And you describe how the feminist movement reframed the terms of the debate. What are some of the things that the feminist movement introduced - new ways of thinking, new concepts that the feminist movement introduced into the abortion debate?
Ms. GREENHOUSE: The role of the feminist movement was actually one of the surprises that we found in researching the book. It's natural to think of the cause of abortion reform as having been part-and-parcel part of the second-wave feminism of the 1960s. And actually, that was not originally the case. It was, as we discussed earlier, originally an issue that was put forward by the public health community.
The feminist community at that time, in the mid-'60s, was much more interested in empowering women to take a full place in the economy, in the workplace, so things like childcare, things like equal pay.
And there wasn't much talk about abortion reform in feminist circles until quite late in the '60s, when Betty Friedan, in a very influential speech, drew the connection between the ability of women to participate fully in the economy and the ability of women to control their reproductive lives.
That, then, began a reframing in feminist terms of the issue of abortion reform as part of women's empowerment, part of women assuming a new role in society. And this, in turn, of course, created concern among those who, at the same time, were concerned about the debate that was going on over whether to ratify the Equal Rights Amendment.
And the cause of abortion reform became caught up in the cultural shifts and the cultural struggles of the late '60s and early '70s. By the time the cases about abortion, challenging the old abortion laws, started filling up the legal pipeline and making their way to the court, the issue was no longer simply an issue of public health.
GROSS: You write about how abortion became a part not only of the culture war, but of the political debate. And you say that abortion enters the political arena during the Nixon administration with the help of then-Republican strategist Kevin Phillips. What did Phillips do to bring the abortion debate into the Republican Party?
Ms. GREENHOUSE: Kevin Phillips, and his sidekick as a political strategist, Patrick Buchanan, perceived as they were working on President Nixon's 1972 reelection campaign, perceived the role that abortion reform was coming to play in social and political discourse out in the country. And there was an opportunity that they saw for political realignment.
It's very interesting that going into that period, when you look at the polling, the notion of repealing the old criminal abortion laws had majority support among, actually, all demographics in the country, but more Republicans than Democrats identified themselves as being for abortion reform.
So here was an opportunity to peel some Democratic voters - mostly urban, ethnic, Catholic, Democratic voters - away from the Democratic Party, attract them to the Republican cause if President Nixon could identify with the cause of preserving the criminalization of abortion, as he then started to do.
So this became the basis for running with the abortion issue and trying to peel away Democratic voters and beginning the party realignment that didn't really come to fruition until the late 1970s with the rise of Ronald Reagan.
GROSS: So when the Supreme Court finally handed down its decision in Roe v. Wade in 1973, giving women a constitutional right to abortion, what were some of the arguments the court seemed to take to heart and other arguments it seemed to ignore in its final decision?
Ms. GREENHOUSE: Well, it's interesting, if somebody reads Roe against Wade and people typically don't, they'll find that it talks mostly about the rights of doctors to act in what the doctors think is the best interest of their patients without facing criminal liability. The voices of women are quite absent from Roe, and on the other side - on the dissenting side, the voices on behalf of the unborn are quite absent from Roe.
The dissent is basically aiming its displeasure at what the two justices who dissented, Justice White and Justice Rehnquist, characterized as the judicial activism of the decision. So the actual decision reflected only a slice of the arguments that were swirling around this debate. And we excerpt the briefs and excerpt the friend of the court briefs so that readers can see what was actually being presented to the court and contrast it with what the court actually did.
GROSS: So, exactly what right to abortion did Roe v. Wade give women?
Ms. GREENHOUSE: The Supreme Court in Roe against Wade gave women the right to decide to terminate a pregnancy in the first trimester without any interference by the government, in the second trimester under government regulations that could be adopted only for the purpose of protecting health and safety. And in the third trimester after viability, the state could prohibit abortion with an exception (unintelligible) for a women's health. That was built into the two decisions that the court issued on January 22nd, 1973, Roe against Wade and Doe against Bolton.
GROSS: And since the Roe v. Wade decision, women's right to abortion has been narrowed by congressional legislation and state laws. So the arena has changed a little bit and the right to abortion has been restricted in some ways.
Ms. GREENHOUSE: What's changed in the years since Roe are the procedural obstacles that the Supreme Court has allowed states to place in the way of women exercising the right to abortion. So for instance, waiting periods have been upheld, notice to parents have been upheld for teenagers seeking abortions. Those kinds of regulations, and there are new regulations coming down the pike that may reach the Supreme Court in the foreseeable future. But the basic right to abortion, the ability of a woman to decide to terminate a pregnancy has been reaffirmed by the Supreme Court - 1992, Planned Parenthood against Casey. And so that right does still exist.
GROSS: What are the new challenges to abortion that you expect to come to the Supreme Court in the near future?
Ms. GREENHOUSE: A few legislatures have passed statutes that seek to discourage women from going ahead with the abortion by requiring doctors to either show the woman an ultrasound, to perform an ultrasound and show the image to the woman, or if the woman declines to look at the image, the doctor is required by law to read her a description of what would be seen on the screen. And this has been put forward as an effort to inform the woman. What it actually is, is an effort to make the decision to go ahead with the abortion emotionally fraught and onerous.
And so these are inevitably going to be challenged. And the current Supreme Court standard for evaluating a restriction on the right to abortion is the undue burden standard, whether the regulation at issue places an undue burden on a women's right - on the exercise of a woman's right to abortion. And so this kind of legislation will be tested against that standard.
GROSS: Linda Greenhouse, thank you so much for talking with us.
Ms. GREENHOUSE: Thank you, Terry. Thanks for having me.
GROSS: Linda Greenhouse is the co-author of the new book "Before Roe v. Wade." You can read the book's introduction on our website, freshair.npr.org. Greenhouse is a former New York Times Supreme Court reporter and now writes an online law column for The Times.
Coming up, we remember Senator Robert Byrd. He died at 3 a.m. at the age of 92. We'll listen to an interview I recorded with him about his life. This is FRESH AIR.