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NPR Politics Podcast: The history of abortion rights in the U.S.

LEILA FADEL, HOST:

This past September, the NPR Politics podcast put together an episode on the history of abortion rights in the U.S. We listened back to it, given the leaked Supreme Court draft, and it provides some helpful context for this moment. We're going to play part of it now, but we should warn you, you'll hear from people who spoke to NPR in the 1970s about why they got illegal abortions and describe what it was like to undergo the procedure. Here's podcast host Tamara Keith, speaking with legal affairs correspondent Nina Totenberg.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

TAMARA KEITH: It has been nearly a half-century since the Supreme Court legalized abortion. That means there is an entire generation - more than a generation - who doesn't know what life was like without legal abortion in the United States. So, Nina, can you take us back to those years leading up to Roe v. Wade?

NINA TOTENBERG: Well, you know, interestingly, abortion was not made illegal until the late 1800s. But by the 1960s, abortion, like childbirth, was really a very safe procedure when performed by a doctor. And women were entering the workforce in large numbers. And to have a child out of wedlock was to make working not only far more difficult, but it was like putting a scarlet letter on your back. It was scandalous. As a result, illegal abortion was becoming a public health problem. The numbers of women who had illegal abortions each year ranged from 200,000 to over a million. I know that's a wide estimate. In 1973, NPR spoke to one of those women who had an illegal abortion. She didn't want her name used.

UNIDENTIFIED PERSON #1: I was very ashamed. But now I see that I was ashamed for many reasons, more than just the things that I had done. In other words, I think I was ashamed because I had nobody to help me. When you have an illegal abortion, all the institutions and all the people which normally support you through a crisis disappear into the mist. And I think this is one of the most damaging things about it because when you make that decision, you are probably as lonely and alone as you will ever be in your whole life.

KEITH: That is a devastating story and not an uncommon one at the time.

TOTENBERG: That's right, Tam. And to talk about how the Roe case came to be at the Supreme Court, I talked to somebody who was actually there at the time.

GEORGE FRAMPTON: Hi, I'm George Frampton. I was a law clerk for Justice Harry Blackmun at the time that the Roe v. Wade case was argued and decided.

TOTENBERG: At the time, if you were a young woman who lived in a college dormitory, you were likely to see one or more women carried out of your dorm hemorrhaging from a botched illegal abortion.

FRAMPTON: Those abortions either had to be obtained undercover if you had a sympathetic doctor if you were wealthy enough, or more likely illegally in back rooms, often by abortion quacks, crude tools, no hygiene. By the early, mid-'60s, thousands of women in large cities were coming into hospitals bleeding, risk of their lives, often maimed.

UNIDENTIFIED PERSON #1: The best way I can describe it would be the equivalent of having a hot poker stuck up into your uterus and scraping the walls with that. It was excruciatingly painful. The attendant that was there held me down on the table. I must say he worked on me more as though I were literally a piece of meat. And I don't mean that to be vindictive, but that was the way the relationship was.

FRAMPTON: And as a result, in the mid-'60s, a reform movement had started, begun to decriminalize abortion, treat it like a normal medical decision between a woman and her doctor.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #2: Mr. Chief Justice, and may it please the court, we are once again before this court to ask relief against the continued enforcement of the Texas abortion statute.

KEITH: So, Nina, I am guessing that because this is the way things work in this country, there was, like, a patchwork of state laws with different rules and different approaches that came to the Supreme Court.

TOTENBERG: Correct. The American Law Institute, a highly respected group of lawyers, judges and scholars, published a model abortion reform law supported by the American Medical Association. And many states began loosening the restrictions on abortion. Four states legalized it, and a dozen or so other adopted some form of the model law, which permitted abortion in cases of rape or incest, fetal abnormality and to save the life or health of the mother. Most of the laws follow the ALI recommendations but by the 1970s, when nearly half the states had adopted reform laws, there was a small backlash. Still, as George Frampton observes...

FRAMPTON: When this came to the court, it wasn't a big political or ideological issue at all.

KEITH: That seems sort of surprising, I mean, given where we are politically right now. Wow.

TOTENBERG: In fact, you know, the justices of the Supreme Court back then were mainly conservative establishment figures. Six were Republican appointees, including the court's only Catholic, and five were generally conservatives as defined at the time, including the four appointed by President Nixon.

FRAMPTON: These were people who were establishment conservative justices who saw this as a constitutional aspect of a medical and legal reform movement.

TOTENBERG: As it happened, Roe was argued twice because of the death of two justices. And by January of 1973, the court was ready. Justice Blackmun announced the decision for a 7-2 majority.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: The Supreme Court today ruled that abortion is completely a private matter to be decided by mother and doctor in the first three months of pregnancy. The seven...

KEITH: So the framework established in Roe and upheld repeatedly by the court was that for the first two trimesters, the choice was the woman's.

TOTENBERG: Correct, with some qualifications added in 1992, when the court said that states could enact some restrictions as long as they didn't impose a, quote, "undue burden on a woman's right to abortion."

KEITH: Why did the court impose that rigorous framework around trimesters?

TOTENBERG: Well, Frampton says that the court hewed to the traditional view in Anglo-American law that the fetus became a person at quickening, when the woman first feels the fetus move. And that usually was defined as between 18 and 22 weeks. And having this framework, the court thought it could resolve the issue.

FRAMPTON: The justices thought that this was going to dispose of the constitutional issues about abortion forever.

FADEL: So far, forever has lasted a little over 49 years. That was NPR's Nina Totenberg talking about the history of abortion rights with colleague Tamara Keith.

(SOUNDBITE OF ERNIE R ROUSSEL TRIO'S "TANIATA") Transcript provided by NPR, Copyright NPR.

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