Advocates for women in New York are split over how to move forward with the Women’s Equality Act, which is being held up over a provision on abortion that would align state law with the Supreme Court’s Roe v. Wade ruling. Some advocates argue that the provisions ensuring pay equality and cracking down on sexual harassment and trafficking are too important to sacrifice to the contentious abortion provision and want it sacrificed to ensure that the rest of the measures pass. Others argue that abortion is essential to the full package of women’s rights and are willing to sacrifice short-term progress in the interest of ensuring the inclusion of abortion.
It’s a split that’s eerily similar to the arguments over the state’s original abortion reform law, a groundbreaking piece of legislation passed in 1970, which I detail in my book, Good Catholics. Abortion was illegal in the state, as in much of the nation, except if a woman’s life was in danger. For years, the state’s powerful Catholic conference had managed to derail bills that would make abortion a bit more accessible by allowing it in cases of rape, incest, or fetal deformity. But such measures still required at least two doctors to sign off on the procedure—in other words, women had to seek a man’s permission, since almost all doctors were men, to get an abortion.
But in 1969, abortion rights supporters enlisted the support of Republican legislator Connie Cook to introduce a bill based on an idea that was just gaining traction in the feminist, medical, and progressive religious communities: remove abortion completely from the penal code and let it be regulated as a health matter. The bill placed no gestational limits on abortion and even let non-physicians perform the procedure. As Lawrence Lader noted in his book Abortion II, the Washington Post reported at the time that a similar bill in Maryland “treats abortion as a medical problem, and puts the responsibility for making whatever choice is involved squarely where it belongs—on the individuals directly concerned.”
But the bill couldn’t get out of committee, so Cook came back the following year with a new bill that had a better chance of passing. This bill kept abortion in the penal code and required doctors to perform the procedure; eventually a 24-week limit was added to gain the votes needed for its passage. But the bill cleaved the feminist community. Radical feminists argued that it was a sell-out. They said allowing the government to put conditions on abortion access was a mistake that would allow a gradual erosion of rights as more and more conditions were added. Groups like New Yorkers for Abortion Law Repeal pleaded with Cook and backers like Lawrence Lader, who had recently founded the National Association for the Repeal of Abortion Laws, to hold out for a true repeal bill.
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In the end, politics won out. The chance to pass what was at the time the nation’s most liberal abortion law was too good to pass up. The bill, which was basically a compromise between the go-slow position of reforming abortion laws to allow a few more conditions under which abortion could be performed, and the repeal position of scrapping abortion limits entirely, became the model for Roe v. Wade three years later.
But in the long run, the radical feminists were right. Putting conditions on abortion did allow the gradual erosion of abortion rights. More and more conditions, from waiting periods to state-scripted harangues on the supposed mental and physical dangers of abortion, to invasive ultrasound laws have chipped away at abortion rights. And expensive new clinic regulations and admitted privilege laws are dramatically reducing access to abortion. According to the nonpartisan Guttmacher Institute, “[a]n unprecedented wave of state-level abortion restrictions swept the country over the past three years,” with 70 new anti-abortion measures enacted in 2013, 43 in 2012, and 92 in 2011. As a result, the “majority of women now live in states hostile to abortion rights,” with these restrictions falling particularly hard on women in rural areas in the South and middle part of the country who are disproportionally young, poor, and women of color.
So it’s ironic that the bill currently before the legislature would do exactly what Cook tried to do more than 40 years ago, when many of these same populations of women couldn’t access legal abortion: remove abortion from the penal code and put it where it belongs in the public health code. This would remove the specter of doctors being prosecuted for performing later abortions for women who need them to protect their health. With abortion rights under threat around the country, it’s a goal that is too important to sacrifice to political expediency.
But it’s a sad testament to the state of abortion rights that the measure doesn’t go nearly as far as Cook’s original bill, which would have broadened access by allowing non-physicians to perform abortions. Decades after it was first advocated by feminists, California recently passed a measure to allow physician assistants, nurse practitioners, and midwives to perform early abortions, a move that puts abortion care to where it belongs—with the medical professionals who care for women.