A few days before Thanksgiving in 1968 my mother, Beatrice Kornbluh, a labor lawyer and member of the National Organization for Women (NOW), took time away from her job and three daughters to address her newly elected representative to the New York State Assembly, Franz Leichter. “Dear Franz,” she wrote, “Enclosed is an abortion repeal law.” Assemblywoman Constance Cook, among the many Republicans who once favored reproductive rights, pre-filed a bill before the start of the next legislative session based on my mother’s draft. It was the first legislative proposal in US history that promised unrestricted access to abortion, with no limits based on the number of weeks a pregnancy had progressed and no doctors deciding who needed or deserved the procedure. As of today only four states, plus the District of Columbia, have made abortion as accessible as my mother wanted it to be when my twin sister and I were toddlers.
Leichter had the backing of the Jews and non-Jewish liberals he represented in Manhattan’s Upper West Side, who during World War II had learned to reject public policies that distinguished between good and bad bodies, acceptable and unacceptable reproductive choices. Born in Vienna, Leichter had been a refugee from Nazism whose own feminist mother, the sociologist Kathë Leichter, was killed at one of the notorious “T4” centers established for the so-called euthanasia of disabled people. He joined a national effort to make the Democratic Party more encompassing of civil rights, including of women’s civil rights—an effort that, under Eleanor Roosevelt’s leadership, was strongest in New York State. From the moment he entered the legislature, Leichter was the foremost Democratic advocate of my mother’s bill and of the liberal approach to abortion rights it represented.
My mother never dreamed of shaping policy beyond her state. She had produced the draft legislation for a committee of her local NOW chapter—she was the only member with a law degree—that hoped to use state law to solve a problem state law had created. New York’s legislature passed its first abortion statute in 1828, creating a crime out of what had until then been a practice loosely regulated under common law. By my mother’s time, the terrible effects of this nineteenth-century innovation were clear. According to a 1965 report by the New York City Department of Health, maternal mortality in the city rose—from 60 deaths out of every 100,000 live births in 1954 to 73 in 1962—even as medical technology advanced and childbirth became safer overall. One quarter of deaths of pregnant white women, and half of deaths of pregnant Black and Puerto Rican women, were due to poorly performed abortions. Despite these damning numbers, reforming the abortion law in New York was a heavy lift. Even to discuss abortion was considered transgressive.
Beatrice cared more about her principles than about convention. When I was in high school in the early 1980s she was famous among my friends for confronting young people on the subway whose boomboxes were loudly playing music not everyone in the car had agreed to hear. Starting when I was about ten years old, she would say periodically, with clenched fists and a flushed face: “You don’t understand, Felicia! They”—illegal abortionists—“were butchers! Butchers!” She repeatedly interrupted conversations about health care with a warning to “never go to a Catholic hospital! All they care about is the fetus,” she railed, gorgeously, “never the mother!”
In 1970 the New York legislature passed a revised version of the bill she drafted. Governor Nelson Rockefeller, like Assemblywoman Cook a pro-abortion rights Republican, signed the bill on the afternoon of April 11, to take effect on July 1. It was the most liberal abortion law in the country prior to Roe v. Wade. The legislature did not approve Beatrice’s unfettered approach (it would come closer in the Reproductive Health Act of 2019), but it let pregnant people decide for themselves through the twenty-fourth week of pregnancy—approximately the end of the second trimester, the period during which the Supreme Court would rule in Roe that states had limited power to regulate abortion. The New York law also changed the national and even international environment for people seeking abortions because it lacked a residence requirement. From July 1970 onward, anyone who could afford the trip and the procedure—and whose pregnancy had not advanced beyond twenty-four weeks—could come to New York for a safe, legal abortion.
*
The New York law set the stage for Roe, which turns fifty this month. In his majority opinion, Justice Harry Blackmun noted that attitudes about abortion within the American Medical Association (AMA) had changed almost completely in the 1960s and 1970s. In the nineteenth century, the rising medical profession represented by the AMA had advocated fiercely for state laws that criminalized abortion. Only in 1967 did the AMA first accept abortion in cases of rape, incest, and fetal anomalies. Just days before the New York law was to be implemented, the organization responded to a raft of lobbying, petitions, and civil disobedience—including a walk-through of the group’s 1969 convention by Dr. Lonny Myers, a founder of the National Association for the Repeal of Abortion Laws (NARAL, now NARAL Pro-Choice America) in white coat, with her wrists bound by red tape—by approving abortions in a wide range of circumstances, as long as they were performed in hospitals and approved in each case by two physicians. It was a more restrictive approach than New York’s, but more permissive than that of forty-seven states.
Advertisement
Activists had originally lobbied and disrupted the AMA’s deliberations in a bid for the organization to support my mother’s bill. They did not succeed at that goal, but it was ultimately their success in New York that caused the AMA to change in turn. In documents I found in Justice Blackmun’s papers, I learned that the watershed vote of the AMA’s governing body followed on a recommendation from the organization’s Board of Trustees that decisions about abortion be left to individual patients and their doctors. Part of the rationale was that “several states,” most notably doctor-rich New York, had liberalized their laws in ways that created ethical problems for doctors who wanted “to perform a legalized medical procedure without violating the policy of their professional association.” More explicitly, a committee on abortion that reported its findings at the AMA’s 1970 meeting received testimony on “the logistic and other problems which will occur in New York when that state’s new abortion law becomes effective.”
At the end of the 1960s and in the early 1970s, the impetus to change abortion laws came from local activists both within and outside of the political parties. Behind the state-level fight for new legislation in New York were neighborhood-level contests. In addition to Leichter’s and my family’s largely Jewish Upper West Side, Harlem was another center of the effort. The informal capital of Black America was home to Assemblyman Percy Sutton, who introduced the first bill liberalizing abortion law to New York’s legislature in 1965 and published a groundbreaking series on abortion in The Amsterdam News that concluded, “More abortions should be legal!” Sutton’s bill, which decriminalized abortion in cases of rape, incest, and danger to a pregnant woman’s health, inspired reformers in other states, such as Colorado and California, both of which reformed their laws in 1967.
The grassroots activists who put abortion on the radar with legislators like Sutton and Leichter differed from one another in almost every way. My mother was a left-liberal lawyer who wore skirt suits and panty hose to lobby the powerful. Florynce Kennedy, an early NOW member and part of the legal team that brought the first federal abortion case based on a class-action suit by women rather than the criminal defense of a doctor, was a radical Black feminist who favored street demonstrations in slacks and cowboy hats. Redstockings—the group, cofounded by Shulamith Firestone, which organized the world’s first “speak-out” on abortion—didn’t send carefully worded correspondence but used confrontation and media to pressure officials. The Puerto Rican physician Helen Rodríguez-Trías, my mother’s next-door neighbor, started advocating abortion rights while chief of pediatrics at Lincoln Hospital, a position to which she was appointed after the Young Lords Party occupied part of the hospital demanding better services and community control over health care. Rodríguez-Trías was, like my mother, a trailblazing woman professional, but she was far more progressive on questions about race and empire, an independentista and close ally to the women of the Puerto Rican Socialist Party.
In the struggle that created the conditions under which Justice Blackmun and the Supreme Court majority decided Roe, these leaders stayed true to their shared goals without censoring their differences. Many NOW members were disappointed when the New York bill was watered down from my mother’s draft, but they kept working with their legislative partners. Kennedy came to deride NOW as “boring and scared.” But she endorsed the Women’s Strike for Equality, the brainchild of NOW president Betty Friedan, which helped keep abortion decriminalization on the national agenda after the win in New York. Firestone saw herself as more radical than NOW or the Democrats. But the Redstockings manifesto, coauthored with Ellen Willis, insisted: “We will not ask what is ‘revolutionary’ or ‘reformist’, only what is good for women.” Rodríguez-Trías knew that legal abortion was only a first step toward the far-reaching social change that undergirded reproductive freedom. But it was a necessary step, so she pushed for abortion rights while advocating for Puerto Rican independence, seeking high-quality public medical care for all, and opposing the sterilization abuse that particularly affected Latinas, Black women, and poor whites.
Advertisement
The people who gave their time and talent to the cause did not get everything they wanted from the Supreme Court, but their combined efforts led to the Roe opinion. Although the case that Florynce Kennedy had helped bring in federal court in New York, Abramowicz v. Lefkowitz, became irrelevant when the state legislature passed my mother’s law, the materials that attorney Nancy Stearns produced for the case also informed feminist litigation in New Jersey, Connecticut, Rhode Island, Massachusetts, Pennsylvania, and, from Texas, Roe v. Wade. The Connecticut case, Abele v. Markle, produced two separate rulings. Blackmun borrowed the famous three-trimester framework of Roe from the second ruling and echoed the first when he concluded that the constitutional right to privacy was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
The odds against restoring access to safe and legal abortion for everyone in the US may seem overwhelming. What I’ve learned from my mother and the many activists and legislators who made abortion legal fifty years ago is that the road to national recognition of reproductive rights winds through states, cities, and even neighborhoods. Roe the constitutional landmark was a great achievement of grassroots politics. It will be the same this time, whether reproductive rights will finally be secured by Congress or, as unlikely as it seems today, by the courts. The battle that produced the New York law—multifront, grassroots, and waged by people who were far from famous—provides a blueprint for the battles we need to join now.
In his 1987 essay “The Constitution of Aspiration and ‘The Rights That Belong to Us All,’” the great legal historian Hendrik Hartog wrote that our history’s most consequential efforts to assert constitutional rights grew from people’s belief that “when we are wronged there must be remedies, that patterns of illegitimate authority can be challenged, that public power must contain institutional mechanisms capable of undoing injustice.” The Roe we need now is the Roe of history, the harvest of seeds planted by tenacious activists in rocky soil. It is also the Roe of aspiration.
