12.5: Analyzing Public Policy- The Case of Abortion before Roe v. Wade

How California Legalized Abortion before the United States

Our first public policy analysis is regarding a historical issue that has great relevance today: abortion.  Specifically, why did California liberalize abortion law prior to the 1973 US Supreme Court case of Roe v. Wade?

The issue of abortion presents an excellent case study of how systems theory helps us study multiple factors to explain policy outcomes. The fundamental puzzle regarding abortion is what explains the dramatic changes in policy. In the 1850s, states banned abortion under most circumstances. Then, in 1973, the US Supreme Court, in the case of Roe v. Wade, declared that access to abortion, under most circumstances, is a constitutional right, protected by the Ninth and Fourteenth Amendments. Almost fifty years later, the Court reversed itself in Dobbs v. Jackson (2022) stating, in so many words, that Roe was a mistake and directing states to develop their own abortion policies. Thirteen states promptly banned abortion almost entirely and many more have limited its use. Just a handful of states have continued to protect access to abortion using the previous standard of Roe v. Wade, which only restricted abortion in the third trimester (after twenty-four weeks). California is one of these more liberal states, even adding new laws to protect access to abortion.

What explains these dramatic variations in abortion policy? The history of abortion in the United States, and in California particular, raises many questions. What was abortion policy in California prior to Roe v. Wade? How did it come about that California reformed abortion policies before Roe?  How can this history be useful for understanding current debates about abortion? 

Consider the experiences of women when abortion was illegal. Tales of despair are far too common:

“I was seventeen years old. I was married. And ten months after I was married I had a baby girl. She was very ill, and the doctor told me, told me that if I ever had another child, I would die. Three months later, I was pregnant again, and I was absolutely terrified. I couldn't have that baby because if I did, and I died, who would take care of the little baby I had? And so I asked the young women where I worked if there was somebody who could help me do something. And they sent me to a woman, and she lived in a shack. And she put, I think it was a strip of slippery elm bark, and she inserted this up my uterus. And she said, “Now you go home, and that will swell up, and you will have pain, and you will probably have some temperature, but you will have a miscarriage.” Two days later I was in such pain...and so I went back out to see this woman. And she said, "I told you not to come back." And I said, "I have nowhere else to go.” And she just held me up to her chest for a minute and she said, "Honey, did you think it was so easy to be a woman?” (Lana, quoted in Fadiman)

From colonial times through the 1840s, termination of pregnancy was considered ethical prior to quickening; when the mother could feel the fetus move in the uterus, which occurs approximately after 16 to 20 weeks. Family members, herbalists, and midwives provided the instructions. Advertisements in magazines and newspapers such as that in the New York Herald in 1841 hawked “female monthly pills,” as “the very best medicine that ladies laboring under a suppression of their natural illness can take.” (“Capitalism by Gaslight”). In the nineteenth century, it is estimated that between 20 to 35 percent of pregnancies ended in this way (Martinelli-Fernandez 27).

As the practice of medicine developed, the newly formed American Medical Association (1847) sought to professionalize medical care. The AMA considered popular abortion practices dangerous and pressured state governments to ban the practice. In California, the 1850 Crimes and Punishment Act prohibited abortion. California Penal Code Section 274 (1872) also criminalized helping someone obtain an abortion:

“Every person who provides, supplies, or administers to any pregnant woman, or procures, any such woman to take any medicine, drug, or substance, or uses or employees any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment” (Gutierrez-Romine 11).

Similar laws were passed by states across the country. Doctors performed abortions when they were considered therapeutically necessary to save the life of the mother but the criteria for considering whether abortion was therapeutic varied a great deal. Terminating pregnancies by illegal means continued. It was estimated that, nationally, before 1973, somewhere between 200,000 to 1,200,000 abortions were performed annually (Calderone 950) with hundreds of women dying each year from illegal abortions. In 1930, abortion was blamed for the deaths of 2700 women (Benson).

The availability of abortion varied by one’s class. Wealthy women could go overseas to doctors in countries where abortion was legal (such as Japan) or obtain a therapeutic abortion from their doctors who ran the risk of arrest and loss of their medical licenses. The law simply stated that abortion is illegal “unless the same is necessary to preserve her life.”  It was common practice for doctors to perform abortions when women were suffering from mental illness. Therapeutic abortion committees in hospitals authorized these abortions that went beyond the letter of the law (Pendleton 243).

In California, the proximity of the border with Mexico also provided an additional avenue for an abortion. Although abortion was illegal in Mexico, many American women traveled to border towns such as Tijuana for abortions. American doctors, who arranged, through intermediaries, for their patients to have abortions in Mexico were not violating US law. In 1953, the California Supreme Court ruled in People v. Buffum that Americans could not be charged with conspiracy to commit a crime because the abortion had occurred in a foreign country.

In the early 1960s, two public health tragedies prompted many doctors to break with the anti-abortion orthodoxy and push for reform of the law. The first was the thalidomide scandal. Today, thalidomide is an oral medication used to treat a number of conditions including cancer. However, in the late 1950s and early 1960s, it was in clinical trials in the United States to treat a variety of ailments including nausea during pregnancy. Doctors did not realize that the drug would affect the growing fetus. Thousands of babies were born with phocomelia, or deformities of the limbs and it was banned in early 1962. Then in the 1963-65 period, twelve million Americans came down with rubella (also called, at the time, German measles). It was a relatively common virus to contract with mild symptoms for most people (the vaccine for it was invented in 1969). However, during early pregnancy, contracting rubella led to many neonatal deaths and disabilities. During this epidemic, nationally, 11,000 children were born deaf, 3500 blind, and 1800 intellectually disabled.

These two episodes prompted some hospitals to go beyond the letter of the law (which defined therapeutic abortion as only legal when the mother’s life was in danger) and approve of abortions for reasons regarding the health of the fetus (Gutierrez-Romine 15). The California State Medical Board threatened to remove the medical licenses of doctors who had been performing abortions on women exposed to rubella. In particular, a case against nine Bay Area doctors received significant publicity with 128 medical school deans signing a letter defending the doctor’s actions (Karol and Thurston 95).

Concerned that California law ought to be liberalized to help women facing these crises, the California Medical Association lobbied the state legislature to adopt American Law Institute (ALI) standards for abortion. The ALI is an organization of judges, lawyers, and scholars that work independently to improve the legal system by creating restatements of law for legal professionals and model codes of law for legislators. In 1962, the Model Penal Code recommended the liberalization of abortion law to allow abortion when:

1. "There is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother;
2. There is substantial risk that the child would be born with grave physical or mental defect;
3. The pregnancy resulted from rape or incest” (Gutierrez-Romine 12)

In 1967, the California state legislature passed the Therapeutic Abortion Act, and Governor Reagan signed the bill, liberalizing abortion law. However, this law’s impact was soon overshadowed by the case of People v. Belous (1969) which ended the enforcement of the 1872 California abortion law.

Dr. Leon Belous, who practiced obstetrics and gynecology at Los Angeles’ Cedars of Lebanon Hospital, was a well-respected physician and a prominent advocate of liberalizing abortion laws. In 1964, he was a guest on Louis E Lomax’s television show (an interview and debate show on KTTV in Los Angeles)  where he was arguing for the ALI liberalization of abortion law.  One of the listeners was a student named Cheryl Palmer who a few years later found herself with an unwanted pregnancy. Remembering the radio show, she contacted Dr. Belous who advised her that instead of going to Tijuana for an abortion, she should go to a doctor in Chula Vista, to Dr. Karl Lairtus, who would perform the abortion safely. Dr. Lairtus was a Mexican doctor who was seeing patients in California without a license.

Cheryl Palmer took his advice and went to Dr. Lairtus’s apartment for the abortion. However, the police had been tipped off, and while Cheryl was resting after the surgery, they raided the apartment, arresting Lairtus and found evidence of Belous’s referral. Belous was tried and convicted of conspiracy to commit an abortion. With the American Civil Liberties Union’s support, he appealed his conviction, ultimately to the California Supreme Court. Belous argued that by helping Palmer obtain a safe abortion, he was protecting her right to receive health care, specifically, Section 274 of the criminal code allowed abortion when “it was necessary to preserve the life of the mother.” The California Supreme Court ruled that this clause was simply too ambiguous to be enforced in a reasonable and consistent manner. Moreover, the Court, citing the US Supreme Court case of Griswold v. Connecticut (1965), argued that women have a fundamental right to privacy regarding marriage, family, and sex. (People v. Belous 1969). Effectively, with Belous, the Court had legalized abortion in California because the prohibition of abortion could no longer be enforced. Indeed, the argument used in Belous protecting the right to privacy was then used a year later by Jane Roe’s attorneys in Texas, in the case of Roe v. Wade. (1973) 

What explains the dramatic shift in California policy in the 1960s? There was not a groundswell of demand for liberalized abortion laws from the public. The first public opinion polls regarding abortion in the 1960s (Sauer) showed only 7% of Americans favored abortion for any reason, but majorities believed that it should be legal when the women’s life is in danger (87%), the child will suffer severe physical disabilities (50%), or the pregnancy was a result of rape (52%). Polls in California taken at this time show similar findings. A 1969 Field Poll showed only 15.4% of respondents approved of abortion for any reason. However, 77% favored abortion if the child would be born with a serious deformity. Only 29% approved if the family could not afford the child (California Field Poll).

Certainly, the liberalization of abortion laws occurred during a decade in which there was much social change. Civil rights movements for racial equality and gender equality made the issue of reproductive freedom a prominent goal. In 1962, Patricia Maginnis, a laboratory technician in San Francisco formed the interest group, Society for Humane Abortion, which sought to make elective abortions legal. Her group taught classes on the safe self-administration of abortion and helped 12,000 women get abortions by organizing a network of contacts with sympathetic doctors and other providers. Maginnis also founded ARAL, the Association to Repeal Abortion Laws, the predecessor to NARAL, the national interest group dedicated today to the promotion of pro-choice legislation (Loofbourow). Citizen support for abortion liberalization provided an important context for social change.

However, the key actors were doctors who supported the change and the California Medical Association lobbying for liberalization. Opposition to adopting the broader ALI standards came from Catholic clergy in California who mobilized their congregations to write letters to their state legislators (Karol and Thurston). In short, abortion politics in California before Roe were not partisan. Well-organized groups exerted the most amount of influence with both the lawmaking branches and the judicial branch as the arenas for conflict.

For Your Consideration

What lessons emerge from the study of abortion prior to Roe v. Wade that are relevant for today’s debates about abortion?