Remembering an Era Before Roe, When New York Had the ‘Most Liberal’ Abortion Law

In 1971, Pamela Mason was a college freshman living in Ohio when she got pregnant. She knew immediately that she wanted an abortion, but the procedure was heavily restricted in her state.

Still, she wanted to find a way. The clinic near her university’s campus referred her to an abortion clinic in Manhattan, and when she was about 10 weeks along, Mason and her boyfriend scraped together enough money to drive to New York City.

Three years before Roe v. Wade established a constitutional right to abortion, New York legalized the procedure in 1970, turning the state into a magnet for women who wanted to terminate their pregnancies but were barred from doing so where they lived.

“I was very relieved because New York was doable. It was 500 miles away,” said Mason, now 64 and a human resources manager living in New Jersey.

The New York law allowed abortions to be performed within 24 weeks of pregnancy and at any time if the woman’s life was at risk.

In the first two years after it was passed, health officials estimated that more than 400,000 abortions were performed in the state. Nearly two-thirds of those procedures were for women who had traveled from outside New York to take advantage of the policy.

Mason had the procedure, which cost $150, and got back into the car later that day to drive home to the Midwest.

Pressed by women’s rights activists, three other states — Hawaii, Washington and Alaska — passed similar laws before Roe was decided in 1973. But they sought to avoid a flood of travelers by requiring people seeking abortions to have lived there for a certain period of time.

So instead of risking their lives with back-alley procedures or at-home coat-hanger abortions, many women came to New York.

“After 142 years of one of the most restrictive abortion statutes — allowing abortions only when necessary to preserve the life of the mother — New York suddenly had the most liberal abortion law in the world,” wrote Dr. Alan F. Guttmacher, a birth control pioneer who advocated legalizing abortion, in a 1972 report.

After Justice Anthony M. Kennedy announced his retirement from the Supreme Court last month, some legal experts warned that Roe v. Wade may be overturned or effectively gutted under a majority-conservative court. Others believe the law is unlikely to be overturned but that a right-leaning court will rule in favor of state legislatures seeking to restrict abortion access.

Judge Brett M. Kavanaugh, President Donald Trump’s nominee to replace Kennedy, dissented in an appeals court decision allowing an unauthorized 17-year-old in immigration detention to seek an abortion without delay, writing that the court was authorizing “immediate abortion on demand.”

He said that the appeals court was bound to follow Supreme Court rulings saying the Constitution protects a woman’s right to choose an abortion, but legal experts have predicted that he will be more conservative on the issue than Kennedy, who had been the court’s swing vote.

As states, primarily in the South and Midwest, pass laws restricting where and when women can terminate their pregnancies, women will have to rely on surrounding states that have maintained higher levels of access — if they can afford to travel to them, said Elizabeth Nash, senior state issues manager at the Guttmacher Institute, a reproductive health organization that supports abortion rights.

Even New York’s statute now falls short for many abortion rights activists concerned about a coming Supreme Court shift rightward.

“We are now faced with a nominee to the Supreme Court who is hostile to abortion rights,” Nash said. “So you could see why abortion rights supporters might look to the states to enact additional protections.”

Up until 1970, New York followed a law enacted in 1828 that permitted abortion only when it was required to save a woman’s life.

It was high drama in New York’s capital as the new legislation, allowing abortions within 24 weeks of pregnancy, proceeded through the state house. On the floor of the Senate chamber, a Republican senator read from a document that he called the “Diary of an Unborn Child.” Another legislator accused his colleagues of metaphorically reaching their hands into a would-be mother’s womb.

The bill only passed the state Assembly in April 1970 because a Democratic assemblyman from a heavily Catholic district who had initially voted “no” stopped the roll call to reverse his vote, with tears welling in his eyes and his voice trembling.

“I realize, Mr. Speaker, that I am terminating my political career,” the assemblyman, George M. Michaels, said. “But I cannot in good conscience sit here and allow my vote to be the one that defeats this bill.” Michaels lost his seat in the next election.

Franz S. Leichter, then a Democratic assemblyman, wrote the bill with a Republican colleague, Constance E. Cook. Leichter, 88, remembers several hours of highly emotional debate in the legislature.

He said opponents of the bill warned it would initiate a flood of out-of-state women into New York.

“People were saying, are we going to become the abortion clinic for the whole nation?” Leichter said in an interview. “Are people going to flock here?”

They did. Women discovered opportunities to get an abortion in New York through advertisements in magazines, on billboards, on matchbook covers and — at least once — on a banner pulled through the sky by a blimp.

Dr. Carmel J. Cohen, a retired obstetrician-gynecologist who practiced at Mount Sinai Medical Center in New York over six decades, said the overwhelming majority of his abortion patients in the early 1970s had traveled from outside the state. Cohen, 86, who is now a professor emeritus at Mount Sinai, said in an interview that women with the financial means would often travel to and from New York for an abortion in a single day.

Demand was high in those years. But when the Supreme Court handed down Roe and enabled women to get the procedure legally in their home states, abortions for out-of-state patients plummeted in New York and many of the city’s nonhospital abortion clinics fell into financial trouble.

“Once the law changed and Roe v. Wade made abortion available to everyone, I don’t know that I ever did another abortion,” Cohen said.

“At the end of my career, they’re trying to change it back to what it used to be,” he added. “I never, ever in my wildest dreams thought that we would be facing what we face now this year.”

If the court overturns Roe or gradually chips away at it, many legal experts believe that scientific innovation — including new forms of birth control and inexpensive pregnancy tests — would prevent the country from returning to pre-Roe conditions.

Emboldened by the prospect of a conservative majority on the court, some state legislators are already pushing for laws restricting abortion. Four states already have laws that would ban abortion in the event that Roe was overturned, while 10 states still have unenforced, pre-Roe abortion bans on the books, according to data from Guttmacher.

If some states restrict the procedure, there are others positioned to pick up the slack. Nine states have already passed laws that would uphold a woman’s right to choose abortion before viability or when necessary to protect her life or health, including California and Nevada to the west, as well as Connecticut and Maryland to the east.

Some red states with their own abortion restrictions, like Kansas and Oklahoma, attract out-of-state patients because of their location. Clinics in those states help absorb the high demand for abortions in Texas, where access is limited, said Dr. Colleen McNicholas, an obstetrician-gynecologist who provides abortions in the Midwest.

Crossing state lines for an abortion is not an option for everyone. Like in the early 1970s, income is still a barrier to traveling long distances for the procedure. Many women who need to travel out of state must pay for transportation, hotel rooms and child care — all while potentially losing income from missed days at work.

New York’s own legislation, which hasn’t been altered since its passage, no longer provides much solace to abortion activists who fear losing Roe entirely.

Although the state has supported broad abortion access — for example, its Medicaid program funds abortions for women in the lowest income bracket — the state law doesn’t meet the standards set in Roe, said Donna Lieberman, executive director of the New York Civil Liberties Union.

New York’s law does not allow for an abortion after 24 weeks unless it is necessary to save the woman’s life. Roe and subsequent abortion cases go further, holding that at no point in a pregnancy can a state limit access to abortion care if the woman’s health — not just her life — is at risk or if the fetus is not viable.

Lieberman’s organization has been pushing new legislation that would enshrine Roe in state law and remove regulation of abortion from the criminal code, where it has remained since the 19th century. The legislation, called the Reproductive Health Act, would also broaden the group of people who can perform abortions, from just physicians to other health care practitioners like physician assistants.

While the bill has long had support in the Democrat-dominated state Assembly, the state Senate has kept the legislation at a standstill in recent years. Republicans currently hold a slim majority in the Senate because of a rogue Democrat who votes with them, but Democrats are hoping to win control of the upper chamber in the November election, giving them the chance to put the abortion bill up for a vote. Senate Majority Leader John Flanagan, a Republican, has said New Yorkers’ access to abortion would remain unchanged during the Trump era. But abortion rights activists in the state want a revised law that preserves broad access.

“We need to set the record straight,” Lieberman said. “The statute books need to be updated.”