The Daily - An Abortion Rights Champion of the 1970s on Life Before and After Roe

Episode Date: July 1, 2022

A little over 50 years ago, Nancy Stearns, a young lawyer, was presenting a case in New York with a bold legal assertion: that the right to abortion was fundamental to equal rights for women.She never got to conclude her argument — first New York changed the law, then came Roe v. Wade. Now, with Roe overturned, she describes how it feels to watch the right to terminate a pregnancy fall away.Guest: Nancy Stearns, a lawyer who used an argument of equal rights to challenge the constitutionality of abortion bans.Want more from The Daily? For one big idea on the news each week from our team, subscribe to our newsletter. Background reading: The United States almost took a different path toward abortion rights. Abramowicz v. Lefkowitz was the first case in the country to challenge a state’s strict abortion law on behalf of women.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Sabrina Tavernisi. This is The Daily. Fifty years ago, before Roe v. Wade, a young lawyer in New York named Nancy Stearns brought a different case with a radical argument that the right to abortion was fundamental to equal rights for women. Today, Nancy Stearns on what it was like being on the front lines of the abortion fight at its beginning and how it feels to see that right fall. It's Friday, July 1st.

So, Nancy, I want to go back to the very beginning. How did you get involved in the cause of abortion rights? What drew you to it? of abortion rights. What drew you to it? Well, it was the summer of 1963, June of 63. The summer that I finished my master's degree, I drove south with a friend of mine, and we thought, you know, we were going down just to do some volunteer work briefly with SNCC, the Student Nonviolent Coordinating Committee, to assist the civil rights movement. Young people working with the Student Nonviolent Coordinating Committee are characterized by restless energy, radical change in race relations in the United States.

And rather than staying for the summer, I stayed for a year. By the forces of our demand, our determination, and our numbers, we shall splinter the segregated South into a thousand pieces. It was really exciting to be part of a movement for social change, of something really important. Freedom! Freedom! Freedom! Being down there, I realized if I really wanted to be of greater value, it seemed to me the skill that made the most sense was a law degree.

So I went to law school. And when I was out of law school, somebody I knew suggested that I meet with a group of women from an organization called HealthPAC, the Health Policy Advisory Committee. And they met together in the evenings to talk about health issues as they related to women. And that's really, I think, what led me to being involved in the women's movement. Sisterhood is powerful! Join us now! I saw the women's movement in the context of the civil rights movement. Sex and race, because they are easy, visible differences, have been the primary ways of organizing human beings into superior and inferior groups.

I could understand by what I was hearing and seeing and reading that women needed a movement just like the civil rights movement, just like black people needed a movement. totally equal citizens. And our freedoms were very much restricted. And the scope of our lives were very much restricted. Well, the main demand, of course, is equal rights. Equal rights to have a job, to have respect, to not be viewed as a piece of meat. Equal rights to set forth our own humanity. Equal rights. There aren't frivolous demands at all. We just want what men have had all these years. And I think for the first time, I really started thinking I could be part of challenging laws which really, really restricted women's freedom. Not since the suffragettes fought for the right to vote

has an issue been more critical to women than abortion. Obviously it the suffragettes fought for the right to vote has an issue been more critical to women than abortion. Obviously it's a concern for all women. All women face the problem of forced childbearing. What do you mean by forced childhood? Being forced to carry, to term an unwanted pregnancy. That is forced childbearing. So how do you understand the connection between feminism and abortion? I mean, why did abortion become the central cause to the women's movement? It's because if you cannot control your reproductive life, you cannot control your life. And at that point, if you became pregnant, you could lose your job. If you became pregnant, you could lose your scholarship. You could be thrown out of your family. You could have a child you couldn't raise, you couldn't pay for. I mean, it impacted every bit of your life. And I knew that. The more I knew, the more I knew that. Nancy, at the time, what was the law in New York for abortion?

What did it say? Abortion was prohibited in New York except to save the life of the woman. It was one of the stricter ones. I see. But if you had the money to pay for two psychiatrists to say you were going to kill yourself if you were pregnant and had to carry the fetus to term, then you could get a legal abortion. Got it. So how did you start thinking about addressing what you saw as an injustice here? Up until then, the constitutionality of abortion laws had always been challenged in the context of criminal prosecutions of doctors who performed abortions or abortion counselors, people who referred women for abortions.

And they would be prosecuted and they would raise constitutional questions to defend themselves. Normally, the major thing they would say was that the laws were too vague, and therefore it violated their right to due process, and they couldn't know when they acted in some way whether they were violating the law. That was the main way laws were challenged. Women were never in court themselves. It was as if we were irrelevant. The relevant people were the doctors who were men and the abortion counselors who were primarily men but not exclusively men.

were men and the abortion counselors who were primarily men but not exclusively men. And I felt like the crucial people who should be dealing with this and who should be challenging it are missing. And that was why I wanted to bring a lawsuit where, first of all, it would be affirmative. It wouldn't be defensive. It wouldn't be people defending themselves against prosecution. It would be people going to court and saying, my rights are violated. This is wrong. And this is why. So how did you start going about doing that? Well, women were beginning to get together talking about issues that affected their lives as women.

Well, all of us are members of the Women's Liberation Group of New York City. And we thought when we were going to talk about abortion here tonight, instead of just talking about things that were really removed from us, we would talk about our own abortion. So that would have been around 69. The man is the one that screws you. And then when you turn to him and say, Hey, look, sweetheart, I'm pregnant. How do you know it was me?

You never slept with anyone else? How do you know it was me? You never slept with anyone else? Or he said, he always said, he said, what am I going to do? What is he going to do? What am I going to do? That was a very important part of the women's movement, the development of the women's movement in the late 60s, early 70s. When I went to get this abortion, like I knew what was happening. I knew that I was going in

and telling this psychiatrist that I was insane. Because that's what you have to do. You have to tell him that you're going to commit suicide. And you can't just say, no, look, doctor, I'm going to commit suicide. You have to go and bring a razor or whatever. If you don't give me, if you don't tell me I'm going to have an abortion right now, I'm going to go out and jump off the Verrazano Bridge or whatever. But I knew what I was doing then. and the summer of 1969 with the women from health pack what we ended up doing was having small group meetings around the city all around the city and we talked to women, you know, probably maybe 10 women, 15 women at a time. And that's what we did.

I would talk about abortion from a legal perspective and why I thought it was unconstitutional and what I thought we could do to challenge it. And then we would ask women if they wanted to talk about abortion and if they wanted to talk about abortion and if they wanted to talk about their experiences with their doctors. And women really wanted to talk. And then we were able to say, do you want to be part of a group to try to do something about it?

And people signed up to become plaintiffs to challenge the law as part of a larger group and seeing it in a larger political context. Okay, so you're hearing these stories of women who'd gone through illegal abortions. How does that turn into a court case? that says why all of these laws violate the Constitution and violate women's rights is to talk about the details of the impact they had on women and then try to tie that to something the Constitution says. That's the guts of it. It's people's lives. It's showing the impact that these laws that are wrong have on women's lives. I'm going to read you just a very short piece of the testimony of a woman who did not get an abortion, a woman who was a college student, she had a scholarship. She got pregnant. She was not able to get an abortion. She lost her scholarship. She was thrown out of college. She ended up, well, let me just say how she said it. The kind of trauma of giving a baby up for adoption

leaves you with the feeling of a mother who's abandoned her child. I prepared to think of myself as a breeder. I was just breeding babies for someone else to take rather than think of myself as a mother who had abandoned her baby. But the guilt. For months after I left the home for unwed mothers, I'd wake up in the nights crying and sort of rocking my pillow. Hmm. To me, forcing a woman to do that is cruel and unusual punishment. that is cruel and unusual punishment. That's one kind of story that you want to tell a judge who's never had to experience it or think of it or understand it, what that means in a woman's life.

And these stories became your case. They became, yes. Abramowitz versus Lefkowitz, the first abortion case I did in New York. So who was Abramowitz and who was Lefkowitz? Tell me about the case. Lefkowitz was the attorney general of the state of New York. Okay, what about Abramowitz? Abramowitz, she was one of the many women. Her name started with A.

We put them in alphabetical order. So Abramowitz just happened to be first on the list of many plaintiffs. It was roughly 350 plaintiffs. So how did you make your case, Nancy? What was the focus of your argument before the court in this case? The way in which restrictive abortion laws violated women's liberty, how a woman could not live her life to the fullest if she lost her job when she became pregnant, if she got thrown out of school when she became pregnant, if she couldn't take as good a job because of the restrictions on her hours. All of those things have an impact on your liberty. A woman could not be truly an equal member of society for the same reasons. If she couldn't get a full education, if she lost jobs, legislatures were virtually all male. Courts were virtually all male. So a woman could not be

part of the government mechanisms that ultimately made the decisions that controlled her life. That means you are not an equal member of the society. So we were saying that not only was her right to liberty being violated, her right to the equal protection of the laws was being violated. And a woman doesn't create a fetus by herself. A woman doesn't become pregnant by herself. All of the limitations fall on a woman. A man can walk away and does often. So that's a piece of it too, the lack of equality, that there are two people that are creating this pregnancy and only one person, when it's unwanted, has to bear the burden of it. Right. And take the risks that childbirth entails.

Nancy, how radical was that argument you were making at the time? I guess it was pretty radical. I mean, it just seemed common sense to me and to the other women that I explained it to. They understood. But I think even now it's obviously hard for some judges to understand it. We knew it. We understood it in our gut. I was just translating it into legalese. So, Nancy, it's 1970.

Right. What ends up happening to your case? We never really got there because of the change of the law. New York's Assembly passed a bill legalizing abortions for any reason up to the 24th week of a pregnancy. for any reason up to the 24th week of a pregnancy. The New York State legislature changes the law and makes abortion legal up until the last weeks of pregnancy. It's a huge change. Gargantuan change. Tomorrow, July 1st, abortion becomes legal in New York State.

And so that technically makes our case moot. There is no longer a restrictive abortion law in New York to challenge. Health Department officials predicted demand for between 50 and 100,000 abortions in New York City yearly. We've gotten calls from Texas, from Tennessee, from Florida, from New Hampshire, from Chicago, from Iowa.

And I'm not talking about a call. I'm talking about many calls from these places. And women immediately started getting abortions. Oh, yes, we've had people who have come by bus. Women started traveling to New York. By car and flying in so that we've been able to place those people also. Women started traveling to New York. And women started organizing to make sure that women's experience would be a good experience and not a bad experience. And what did you think of that? I was really excited that the law had changed and women would now be able to get abortions.

That was very, very exciting. I can't deny that I didn't have a little bit of disappointment that I would never be able to finish this litigation. What do you mean? Because we knew we would have gone up to the Supreme Court and we could have been part of impacting the whole country and not just New York. So Nancy, it kind of sounds like you're saying doing it through the legislature was in a way more vulnerable. I mean, a kind of a weaker protection for abortion access than if it had gone through the courts, as you imagined.

Yeah, I think that's true. For one thing, if the composition of the legislature changes, they can change the law again. If you can develop a constitutional basis, you hope that won't change. The other thing is it only applied to New York. That's exactly what I was going to say. That's the other thing. It only applied to New York. We'll be right back. Nancy, at what point do you hear about the case Roe v. Wade? I heard about the case Roe v. Wade before it was filed because I received a call from a lawyer in Texas, Sarah Weddington.

And that she was going to be going into court and asked me if I would send her my papers that would outline the legal theories we were using. Mrs. Reddington, you may proceed whenever you're ready. And what was different about an easy thing to do, to block the law from being enforced against her. Jane Rowe, the pregnant woman, had gone to several Dallas physicians seeking an abortion, but had been refused care because of the Texas law. There were kernels of what we were arguing in New York, but it landed more on rights like privacy.

This court said if the right of privacy is to mean anything, it is the right of the individual, whether married or single, to make determinations for themselves. Privacy is a very passive right. You're just saying, you know, I need this realm around me that's private that the government can't get involved in. Liberty is saying, I have a life. I have to be able to live my life to the fullest. And unless you get off my body, I will not be able to live that active life. It seems like Roe was based on an argument that's basically, butt out. This is my private space. But your

argument was deeper in a way, kind of based on, you know, this is a basic building block of being a free person. Right, right. That's the way I would describe it, sure. Good evening. In a landmark ruling, the Supreme Court today legalized abortions. Nancy, can you tell me where you were when Roe was decided? Thus, the anti-abortion laws of 46 states were rendered unconstitutional. Do you remember reading about it, how you felt? I was excited, relieved, and disappointed. Okay, tell me about that. All together. Okay. Well, I was excited that we now had a constitutional right to abortion. I was disappointed that we had to search for the right to liberty in it, that it wasn't front and center. And I also realized the way they did it was complicated

and that that was going to present problems down the road. I also knew, though, that there was a danger that it was going to be chipped away at it in different ways. And of course, that's exactly what happened. Was it a nagging thought for you, Nancy, that, you know, your argument might have been the better argument? I don't know. Other people have suggested it. In terms of where we are today, I will be honest, I don't think it would have made one whit of difference because the people who have struck down the right to abortion would have just said, well, women didn't have a right to equal

protection when the Constitution was founded. I guess, Nancy, you know, you're saying that the other side now would say that women just don't have rights in the Constitution. That's a very radical argument, right? I mean, it feels like it would have been harder to argue against your argument that they had right there, you know, that this was their liberty that was being taken away. In that sense. Yeah. But because none of this came up in the Constitution, none of it's legitimate from the perspective of the people who just took away our rights. The society has changed in so many ways that you can't count them. So to say there was no right to abortion in the Constitution then,

and therefore there is none now, it's just bogus, frankly. I don't know how to treat it with any even intellectual dignity. I mean, beyond whether your argument was legally more solid, do you think a Supreme Court ruling based on women's equality would have been any less divisive than Roe has been? I mean, would that have been a less controversial, less divisive argument? No. People don't want to deal with the fact that what was divisive about Roe v. Wade was not the way in which it was decided. It's abortion. We have a society that is very divided, but really the division is a religious division. division is a religious division. The people who are most vehement are not that vehement because of women's place in society. They are that vehement because they truly, firmly believe, and I think they should believe it forever because it's their belief, that a fetus is a human being for the moment of conception, that we cannot terminate fetal life, and that the fact that it harms women is irrelevant.

But it is a deeply held religious belief, and I respect their religious belief. I don't agree with it, but I respect it. What I do not accept is that their religious belief should be able to control what happens to women's lives. That's the problem. And I think that there are, in our society, there are large numbers of people who have capitalized on that belief in order to be able to win elections. And that's where we are now. I think we can both agree that women have gained substantial rights since the 1960s, right? We've truly come a long way. Oh, absolutely. Truly come a long way. So I'm wondering how big of a step backwards this ruling is in your mind.

I mean, you know, in the early 70s, the feminists were arguing this is everything. This is the basic building block to being a person, right, to being a full and equal person. So is it still true that this brings us all the way back to being completely unequal? All the way back? No. But remember, it is going likely to bring women who do not have money way back. How many poor women who might have been able to go to college and then work their way into good jobs, how many of them are now going to not go to college, are not going to get those jobs, and are going to stay poor all their lives? But the other thing is, remember, if they can cut this back, how many more incursions are going to happen? The very fact that we are told that women do not have a right

to liberty because that was not clearly earmarked 200 years ago shows total contempt for women, as far as I'm concerned. There's already been discussion about the other rights that are at stake here. We may no longer be able to get birth control because that's based on the right to privacy. Where are they going to go if this can go? Nancy, what do you think is going to happen now to the movement? You were around when this issue became a central cause, you know, abortion became a central cause in this really passionate women's movement. And I wonder if you think that kind of energy still exists today. I don't think it did, but I hope it will.

hope it will. After we won Roe v. Wade, even as the anti-abortion forces started chipping away at it, our movement went home. We had very good legal organizations that were doing lawsuits, but we didn't have a movement. You know, there weren't demonstrations because people felt like they didn't need them, that there was no activism about it. And the people who were the most activist didn't recognize that they started having to look at the states that were beginning to cut back. And I can only hope that what will happen now is that this will revive that movement and women will realize we have to fight for our lives again. We really do. I'm hoping that younger women who have energy and maybe now will start feeling threatened. Maybe that will make a difference. I mean, it was young women that were the base of it 50 years ago. Right. And it very well may be again.

The day that the draft opinion was leaked, there was a demonstration in Foley Square, which I was among the oldest, but it gave me heart. And a young woman came over to us, and we all had gray hair, and a young woman came over to us and said, all that gray hair. And a young woman came over to us and said, would you mind if I took your picture? I want to send it to my mother and my sister. And we said, of course, thank you. Did she recognize you? No, she saw we were three older women with white hair and she wanted to share our being there. I remember when I was young and went to not only abortion demonstrations, but anti-war demonstrations. And my friends and I would look at women who were probably younger

than I am now, and we would chuckle and talk about the little old ladies in tennis shoes, you know. And here, my friends and I were the old ladies in tennis shoes at the demonstration with the gray hair. I may not live long enough to see it all come around okay. I have to have the faith that it will. And it's the job now of generations younger than me. Yeah. So Nancy, are you going to go to a demonstration? I'm going to try. I really want to, and I hope I'll be able to.

Your tennis shoes. Oh, I'll definitely wear my tennis shoes. Oh, I'll definitely wear my tennis shoes. Thanks for coming in, Nancy. You're welcome. Thank you. My body, my choice! My body, my choice! My body, my choice! My body, my choice!

Your sign is fabulous. I've taken lots of pictures of it. So I am with you all and knowing you now have a huge thing to struggle about. You won't stop voting, don't worry. I cheer you on. We'll be right back. Here's what else you need to know today. On Thursday, in a major setback for the Biden administration's efforts to address climate change, For the Biden administration's efforts to address climate change, the Supreme Court limited the ability of the Environmental Protection Agency to regulate carbon emissions from power plants. In a 6-3 vote, conservative justices sided with the Attorney General of West Virginia, Patrick Morrissey, who had argued that the EPA was overstepping its authority by using part of the Clean Air Act to issue sweeping regulations across the power sector.

In a statement after the ruling, Morrissey said that the EPA, quote, can no longer sidestep Congress to exercise broad regulatory power. The court's three liberal justices, in dissent, wrote that the majority had stripped the EPA of, quote, the power to respond to the most pressing environmental challenge of our time. And women's basketball star Brittany Greiner will appear in a Russian courtroom on Friday for the start of a trial on drug charges. Greiner was arrested in a Moscow airport on February 17th after Russian customs officials found what they said was vape cartridges containing traces of hashish oil in her luggage.

In late April, the U.S. government classified Greiner as having been wrongly detained, arguing she was being used as a political pawn and has been treating her as a hostage case. The Times reports that legal experts believe her case is all but certain to end in a conviction. Today's episode was produced by Stella Tan, Nina Feldman, and Claire Tonesketter.

It was edited by Paige Cowett, contains original music by Marian Lozano, Chelsea Daniel, Dan Powell, and Corey Schruppel, and was engineered by Chris Wood. Our theme music is by Jim Brzano, Chelsea Daniel, Dan Powell, and Corey Schruppel, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. The Daily is made by Lisa Tobin, Rachel Quester, Lindsay Garrison, Claire Tennis-Sketter, Paige Cowett, Michael Simon-Johnson, Brad Fisher, Larissa Anderson, Chris Wood, Jessica Chung, Stella Tan, Alexandra Lee Young, Lisa Chow, Eric Krupke, Mark George, Luke Vanderploeg, MJ Davis-Lynn, Dan Powell, Dave Shaw, Sydney Harper, Robert Jimison, Michael Benoit, Thank you. Special thanks to Thanks to Sam Dolnick, Paula Schumann, Cliff Levy, Lauren Jackson, Julius Simon, Mahima Chablani, Des Ibequa, Wendy Doerr, Elizabeth Davis Moore, Jeffrey Miranda, Renan Borelli, and Maddie Messiello. And welcome to the world, Ansa Marketti-Young.

That's it for The Daily. I'm Sabrina Tavernisi. See you on Tuesday after the holiday.