In the late 1960s,
a movement to liberalize abortion laws began,
and it began as an effort to change the laws
in state legislatures.
Abortion had been banned for so long,
100, 150 years, that to have this again
as a matter of public and legislative will,
the arguments were crafted from scratch.
It's a medical reality before it's a law anywhere,
and people had to start thinking about these arguments.
New York was the locus of the beginnings
of sophisticated argumentation, pro and con legal abortion.
So New York was a really interesting state,
because it had one of the very strictest
abortion restrictive laws in the country.
The original New York law made an exception
only for the life of the woman, and so abortion was a crime
unless it was necessary to save a pregnant woman's life.
There were movements in various states,
New York is a perfect example of it,
to either repeal or modify abortion statutes
that were already on the books.
And when the pro-abortion movement hit that resistance,
it decided to move to the courts
and to try to get abortion statutes
that they couldn't get repealed
invalidated by the action of judges.
So a group of lawyers in New York,
Roy Lucas was one of them, got together
and decided, "We need to go to court."
It's interesting that going to court
wasn't the first thing that the reformers thought of;
they really wanted to go through the legislative process,
but it wasn't working.
So there were four different cases
that were filed at the same time
in federal district court in New York.
It was filed, and the three-judge court was formed
sometime in the fall of 1969.
Two judges from the trial court would sit on the case,
along with one court of appeals judge.
And the theories of Griswold v. Connecticut's
penumbras and emanations of the Bill of Rights,
or a broader notion of substantive due process,
right to privacy, right to be let alone,
crafted from a number of law review articles
and lower court briefs were working their way
through the courts.
Things dragged on.
It was very unlike Henry Friendly.
He was a speed demon.
We'd get these cases in, you'd get them out
and you'd decide 'em, but not this case,
because he had an idea, and the idea was
that if the case simmers,
perhaps the New York legislature,
which hadn't amended its abortion law in 100 years,
might take notice of the case and perhaps amend the statute.
One of the other judges had been a legislator
and said that it was impossible, it would never happen.
Then Governor Rockefeller appointed a commission
in New York that was supposed to look at
the issue of revising their statute.
The American Law Institute had been looking at
a sort of model abortion law,
which was still pretty restrictive, right,
so it's still life, rape, or incest,
and fetal anomaly I think were the three.
The New York commission basically said, "Let's do the ALI,
"maybe with a little something attached to it."
I would characterize the legislative debates
as tough and personal.
People who got up to speak in favor of reform,
many of them did so at their political peril.
Finally that did happen in 1970, by one vote.
One legislator got up and said,
"Okay, I know I'm the deciding vote.
"I know if I vote for reform,
"I will lost my political career," which he did.
The New York legislature just decided
to really liberalize their law in these extraordinary ways.
There was such a backlash from the church,
from the cardinal in New York,
preaching in all the churches against the new law,
that the legislature repealed it.
The pro-life side was able to get organized
and campaign for its repeal, and they actually succeeded
in getting a repeal bill through the New York legislature
to restore protections to unborn human life.
And Governor Rockefeller, who was a liberal,
pro-choice Republican then vetoed the bill.
So the history there is interesting:
they liberalized the law,
but then the legislature repealed the liberalization,
but the governor vetoed the repeal.
New York was very reflective of the debate on abortion
in the United States at that time.
You had some surprising Democrats who were pro-life.
The Democratic Party used to be quite pro-life,
and there were still dozens
of pro-life Democrats in the 1980s.
There were Republicans who were pro-legal abortion.
And so it was, the parties were not aligned on it.
The argument was very new to people.
You might say, "Well, if this had been
"a procedural due process case,
"or if this had been a case that really seemed
"more rooted in the Constitution,
"then we wouldn't have these problems,"
but I don't think that's the case.
I think we still would have found ourselves
in the same position,
and people still would have been challenging it,
because the underlying feelings
are not about the constitutional order;
the underlying feelings are about abortion.
As late as 1968, it wasn't an issue.
And of course, it wasn't an issue
in 1964, 1960, or 1956, or 1952.
It barely popped onto the screen in 1972, barely.
But it wasn't an important issue.
People knew that George McGovern
favored liberalization of state abortion laws,
but not even McGovern proposed
that it was a matter for the federal government,
much less the federal courts.
It wasn't until Roe in 1973 changed everything
that abortion became a big national issue.
And it was really Roe that turned
the small but vigorous pro-life movement
into a big and vigorous national movement.