America almost went in a different direction on the way to legalizing abortion.
No one thought Roe v. Wade would be the case that changed the world.
In January 1970, women of all ages crowded into a conference room on the 13th floor of the federal courthouse in Manhattan. They sat on the floor and spilled out into the hallway. Some of them brought their wives or friends. One took care of a baby. Another one was a painter who taught first grade. One third went to a Catholic school. They came to testify in Abramowicz v. Lefkowitz, the first case in the country to challenge a state’s strict abortion law on behalf of women.
A small group of lawyers, led by Florynce Kennedy and Nancy Stearns, brought together 314 people, most of whom were women, to make a legal argument that had never been made before: that a woman’s right to an abortion was based on the Constitution’s promises of liberty and equal protection. New York only let women have abortions if it would save their lives. Kennedy and Stearns wanted the court to understand how risking an illegal procedure or carrying a forced pregnancy could limit women’s lives in ways that didn’t happen to men.
The women were giving sworn statements in the conference room for the judges to read later. One of them said that when she was 19 and a student at Vassar, she was taken blindfolded to Washington, D.C. for an illegal abortion, and that she bled for days afterward. She started crying when she talked about going to a gynecologist in Poughkeepsie who told her he would call the police and put her in jail. Another woman, who said nothing, She actually said that she had to leave Queens College and lose her scholarship when she got pregnant and had to carry the baby to term. The press was allowed to come, so what the women said became known to the public.
Lawyers for the State of New York objected to the testimony over and over again. When a freelance writer talked about giving up a child for adoption with tears in her eyes and said that leaving the baby behind was the hardest and most painful part, Joel Lewittes from the state attorney general’s office stepped in. “I’m going to ask that all of the testimony be thrown out because it doesn’t matter,” he said. Someone yelled “Pig!” and everyone in the room cheered.
Florynce Kennedy told Lewittes that he was being cruel. She said, “I see this case as a very clear chance to find out how much women are oppressed by the law.” “And I for one don’t plan to lose sight of my goals for one second.”
These goals started with getting the courts to look at how women’s lives were affected by a near ban on abortion. “When we couldn’t decide when to have a baby, we weren’t free and we weren’t equal,” Nancy Stearns, who wrote the main brief in the case, told me over the phone recently. “That was our main point,” she said, referring to putting equal rights for women at the center of the case. “It was clear that it helped low-income women even more.”
At the time, Stearns’s framing was a legal theory that no one had heard of before. Not only had the Supreme Court never made a decision about an abortion case. In 2010, a Yale Law professor, Reva B. Siegel, wrote in The Boston University Law Review that the court “had never found a single law to violate the equal-protection clause because it discriminated on the basis of sex.”
So, Stearns, Kennedy, and the feminist movement they led took a two-pronged approach. “If you want to get to the suites, start in the streets,” said Kennedy. She played a big role in both the civil rights and Black Power movements. As a seasoned lawyer, “she knew that going to court was a one-ass-at-a-time deal,” her biographer, Sherie M. Randolph, told me. “You had to be an activist to get anything to move.” At the time, Stearns had only been out of law school for three years. He got involved in the civil rights movement by working in the South for the Student Nonviolent Coordinating Committee.