If the Court settles these two issues in favor of New Hampshire, there will be an explosion of red-state abortion regulation far greater than the post-Casey boom. That, more than the imminent reversal of Roe v. Wade, is what’s at stake in the judicial-confirmation battle consuming Washington. The replacement of Sandra Day O’Connor may spell the end of the Court’s meddling with state abortion restrictions. As the famous Casey case made its way up the judicial ladder, there was one federal judge in Pennsylvania who believed that even the extreme spousal-consent provision was constitutional. His name was Samuel Alito.
If Roe were overturned, of course, New York would instantly become an abortion destination for thousands of women who find themselves living in states that voted to outlaw the procedure. This has happened before, and it has had dramatic social and political consequences that we could well see again.
This is now the third period in American history in which New York has become the nation’s abortion capital. In many ways, the story of abortion in the United States is the story of abortion in New York. There were no laws against the procedure until the 1820s. Before that, British common law allowed abortions before “quickening,” or the moment when the fetus first moved. It was in New York in 1828 that America’s first real abortion law was passed. The debate of the day wasn’t driven by religious concerns about when life begins. Instead, as James C. Mohr’s classic history of the subject, Abortion in America, explains, Albany responded to pressure from doctors who were aghast at quacks’ butchering women and scamming them with phony abortifacient potions. The law was really about medical regulation, and, according to Mohr, it went completely unenforced.
At that time, semi-clandestine abortion clinics dotted the city. Inside, women could have a pregnancy terminated or they could purchase “French lunar pills,” “Portuguese female pills,” or other exotic-sounding medicines that would purportedly trigger a miscarriage. The customers were mostly wealthy native-born Protestant women looking to put off their childbearing years or who had decided they’d had enough children.
New York’s nineteenth-century abortionists advertised openly in the leading newspapers of the day, including the Times. “Ladies who desire to avail themselves of Madame Despard’s valuable, certain and safe mode of removing obstructions, suppressions, &c., &c., without the use of medicine, can do so at one interview,” read an 1863 Times ad. Abortion advertising became a hefty source of newspaper revenue. New York’s most famous abortionist, the flamboyant Madame Restell, spent $60,000 a year on such advertising. Over 40 years, she built an abortion empire, with traveling salesmen hawking her pills and franchise clinics in Boston and Philadelphia. Such was her prominence that abortion was referred to in New York as “Restellism.” The practice became very common. A study from 1868 found that one in five New York City pregnancies ended in abortion.
But Restellism produced a backlash. In the 1870s, the Times stopped accepting abortion ads and launched a crusade against the industry. “There is a systematic business in wholesale murder conducted by men and women in this City, that is seldom detected, rarely interfered with, and scarcely ever punished by law,” read a front-page report from 1871 headlined THE EVIL OF THE AGE. Laws against abortion advertising were passed, and abortionists were prosecuted. Madame Restell, who had already been through several trials, was arrested again in 1878 for selling her abortifacient concoctions. On the eve of a court appearance, she dressed herself in diamonds, slipped into her marble bathtub, and slit her throat. By 1881, New York had passed some of the most severe abortion bans, laws that were imitated throughout the nation.
New York’s abortion laws remained unchanged and virtually unchallenged until the stirrings of the abortion-rights movement in the late sixties. New York was home to the earliest abortion-rights group in the country, the Association for the Study of Abortion, and the idea for basing the legalization of abortion on the right to privacy was first proposed, almost on a lark, in a paper by a law student at NYU.
In 1967, the Reverend Howard R. Moody, a Texas-born Baptist minister of Judson Memorial Church on Washington Square Park, began consulting friends about how to help women get safe abortions. He organized 21 ministers and rabbis and built an underground network of reliable doctors; in May 1967, a front-page piece in the Times announced the creation of Moody’s Clergy Consultation Service on Abortion. Clergymen worked weeklong shifts taking calls from women across the country.
As the New York State Legislature moved haltingly toward repealing the state’s laws, the city’s abortion underground began making news. In 1969, police raided the 30th floor of the New York Hilton and arrested three people performing abortions. Another raid in a luxury high-rise in Riverdale broke up “an abortion ring” servicing wealthy women from around the country, many of whom were referred there by the clergymen.