Women vs. Connecticut

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Speaker 1: I think about from the moment I was born, I wanted to be president of the United States. Everyone knew that’s what I wanted to do.

Susan MATTHEWS, Susan Matthews: What made you decide that you wanted to go to law school?

Speaker 1: It seemed like a lot of people went to law school. Who became president of the United States?

Susan MATTHEWS, Susan Matthews: That’s Ann Hill. She started at Yale Law School in the fall of 1968.

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Speaker 1: So we jumped from a couple of women in the class before to 26 women in my class. There weren’t enough men because of the Vietnam War.

Susan MATTHEWS, Susan Matthews: At the beginning of her first semester. It seemed like all her plans might get derailed.

Speaker 1: I had missed my period and I thought I might be pregnant. And this was not the way I wanted to start law school.

Susan MATTHEWS, Susan Matthews: And knew that this was not a good time to have a baby. So she found a local OB-GYN and she was honest with him. She said she didn’t want to continue the pregnancy.

Speaker 1: And he said, Oh, no, most women are so happy to hear that they’re pregnant. And I said, Well, I’m not, and I would like to terminate it. And he said, Well, that’s illegal in the state of Connecticut.

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Susan MATTHEWS, Susan Matthews: The only exception to Connecticut’s law was if an abortion was deemed necessary to save the life of the mother, and Ann’s doctor wouldn’t make that exception.

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Speaker 1: I said, Well, anything else? And he said, No, I can’t think of anything else but good luck.

Susan MATTHEWS, Susan Matthews: Now she had to look for other options.

Speaker 1: You get on the phone because every woman and every man pretty much knows a woman even then who had an abortion.

Susan MATTHEWS, Susan Matthews: One name that kept coming up was Nathan Rapoport. At one point, Rappaport had gone by Dr. X to maintain his anonymity. He’d performed thousands of illegal abortions and had spent nine years in prison. But he remained unapologetic and outspoken. Here he is in 1969 at one of the first rallies for abortion rights.

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Speaker 3: I am out to return the dignity to these women behind me and all of you who have been subjected to seeking an abortion. I think that it’s about time that your dignity was returned to you.

Susan MATTHEWS, Susan Matthews: It didn’t matter to and that Rapaport was famous. She chose him because his office was in New York City. The closest option for someone living in New Haven, Connecticut. Abortion wouldn’t be legalized in New York for two more years. So when an drove to Manhattan with two of her friends, she wasn’t sure what she was getting into.

Speaker 1: I was greeted by a very rough edged guy at the apartment.

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Susan MATTHEWS, Susan Matthews: And paid $500 upfront. Money she had to borrow from one of those friends. She then left them in the waiting room and walked back to the medical office.

Speaker 1: There is a chair with stirrups. Dr. Rappaport was in a doctor’s uniform, if you will. White. But the nurse, the other male wasn’t. I was put completely out unconscious. When I woke up, I did not know how long the procedure had been. I had no idea if I had been there 10 minutes or 10 hours. I came to in that room eventually and didn’t feel the pain immediately. And Dr. Rappaport at that point brought out these papers.

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Susan MATTHEWS, Susan Matthews: Those papers had nothing to do with Ann’s procedure. They were articles and documents about Rapoport, his legal troubles.

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Speaker 1: And he went over it like page by page with me as I was still coming to about how he had been unjustly punished.

Susan MATTHEWS, Susan Matthews: It was they’re still in stir up that and learned that Rappaport had been arrested in connection to a woman’s death.

Speaker 1: Another woman had died. And that stark reality hit me like a punch in the gut. He suddenly went from being in control as the doctor doing the abortion to the one pleading his case and asking me to represent him. I guess knowing that I was a law student, if there was anything I could do to get him a pardon or help him get his medical license back.

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Susan MATTHEWS, Susan Matthews: And was still in her first semester of law school and still trying to process what had happened to her.

Speaker 1: And I just thought how fortunate I was not to have died in that stirrup chair. As soon as I got clearheaded enough, I just went running into the waiting room and I just said, Let’s go, let’s go, let’s go.

Susan MATTHEWS, Susan Matthews: Her friends helped her get out of the apartment and drove her back to Connecticut. It wasn’t a comfortable ride.

Speaker 1: I was bleeding a fair amount more than you do when you menstruate. And I was in a lot of pain. And then I was really scared, too.

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Susan MATTHEWS, Susan Matthews: And went back to the OB-GYN. The doctor she’d seen when she first realized she was pregnant.

Speaker 1: I told him that I had terminated the pregnancy and that I was in bleeding and in a lot of pain. And he said, Oh, well, now we could perform a DNC, which is just to clean out your uterus if there are any remnants left. I could arrange to do that. And I thought, Well, gee, how big of you, you know, I have a nearly died getting an illegal abortion and now you’re telling me you can help me.

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Susan MATTHEWS, Susan Matthews: And didn’t end up needing another procedure. Her bleeding stopped on its own, but she could not get over what she’d been subjected to.

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Speaker 1: I was just furious. I was furious that I had to risk my life for an illegal abortion. I was furious that I didn’t have control over my own body. I was furious that the whole state, a whole country would place women in jeopardy. It went immediately from personal to all other women, and I was bound and determined to change it.

Susan MATTHEWS, Susan Matthews: This is a slow burn. I’m Susan MATTHEWS. In the early 1970s, women all over the country were furious. Some of them channeled that rage into the fight to overturn the nation’s abortion laws. Two cases brought by women attorneys Dobie Bolton and Roe v Wade were moving from Georgia and Texas to the Supreme Court and the first year law student Ann Hill, she was about to start her own battle, one that would help transform America in ways she never imagined. What would it take to change the abortion laws in Connecticut? What forces were reformers up against? And how did this fight set the stage for the Supreme Court?

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Speaker 1: I just was hot to trot to get into court and get rid of these laws.

Susan MATTHEWS, Susan Matthews: This is episode three Women versus Connecticut.

Susan MATTHEWS, Susan Matthews: Before abortion was legal, there were a few ways for women to find people who would perform the procedure. There were advertisements in all weekly and college newspapers. There was also an interfaith religious network that helped connect women with providers.

Speaker 3: This is the Chicago.

Speaker 4: Area Clergy Consultation Service on problem pregnancies. You are being answered electronically. They need only take down the name and number of one of the four clergymen whose.

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Speaker 3: Names will follow.

Speaker 4: Clergymen.

Susan MATTHEWS, Susan Matthews: But the most common way to find out how to get an abortion was to reach out to a woman you trusted.

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Speaker 4: Somebody asked me how you got.

Nancy Stearns: An abortion for a girl who was 16, who wasn’t married and.

Speaker 6: Who didn’t want to have the.

Speaker 4: Baby.

Susan MATTHEWS, Susan Matthews: That’s Betsy Gilbertson. She and Ann Hill were part of New Haven Women’s Liberation. That group formed when the women felt they weren’t being listened to in anti-Vietnam War gatherings. They had plenty to talk about on their own. And Betsy had an idea for something they could do.

Nancy Stearns: And so I went around and talked to various ministers and doctors and the people I could think of that you would ask about that. But after that happened, other people started to call me. I guess they had heard that that I knew how to get people abortions, which was certainly not the truth. But I began to get calls at fairly regular intervals.

Susan MATTHEWS, Susan Matthews: Betsy and Anne started making plans.

Speaker 1: What I call the Underground Railroad in New Haven, to get women to get safe abortions.

Susan MATTHEWS, Susan Matthews: And and her friends found a clinic in Montreal that they felt comfortable sending women to. It offered clean facilities and professional services. They made sure that the American women they sent north of the border had the smoothest trips possible.

Speaker 1: We tried to always make sure that they had a trusted friend. If not, one of us would go, and we always wanted to make sure that things were working well where their next stop was. We just never wanted any woman to feel alone.

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Susan MATTHEWS, Susan Matthews: By 1970, conversations about abortion were happening in public at big events called speak outs. They were also taking place in private homes.

Speaker 1: We did meet a lot in women’s living rooms. Nobody was in charge of making cookies. But, you know, if a woman hosted something in those days anyway, the woman put out a spread. I mean, there was just no getting around it.

Susan MATTHEWS, Susan Matthews: New Haven Women’s Liberation wasn’t just made up of law students. It included all kinds of women, some of them mothers, and brought a tape recorder to one of their meetings.

Speaker 6: I mean, we felt the kind of comradeship that you feel for being involved in a conspiracy, conspiracy that, you know, is illegal and and also that people really need. Yeah. For me, that was the only experience, like not having.

Nancy Stearns: Gotten an abortion myself. You know, that it made us want to have a women’s movement in the first place and.

Susan MATTHEWS, Susan Matthews: For Ann, these gatherings felt transformative.

Speaker 1: If you share with another woman like your deepest secrets, she will share her deepest secrets with you. There’s just a trust. I talked about my abortion and found out that other women had gone through this humiliating, terrifying experience. And that made me convinced even more that we had to do something as a group. It also shocked me.

Susan MATTHEWS, Susan Matthews: When I asked and how she balanced activism with being a full time student. She told me that law school was not that hard, but she did put her legal education to practical use.

Speaker 1: I decided I needed to do something about getting rid of the anti-abortion laws in Connecticut, and I thought, okay, we’re going to do this. We’re going to file a lawsuit and we’re going to get this done by God. We’re going to get this done as women.

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Susan MATTHEWS, Susan Matthews: And and her friends didn’t come up with the lawsuit idea on their own. The concept was being piloted in states around the country, including New Jersey, Georgia, Texas and New York. During her second year of law school, Anne reached out to one of the attorneys leading those efforts.

Nancy Stearns: My name is Nancy Stearns. I was one of the lawyers on a number of cases that for the first time really raised arguments with respect to the unconstitutionality of restrictive abortion laws. From the woman’s perspective.

Susan MATTHEWS, Susan Matthews: You heard from Nancy in episode one. She’s the lawyer who helped overturn Shirley Wheeler’s conviction for getting an abortion.

Speaker 1: Then I called her and introduced myself, and she encouraged me to do whatever we could in Connecticut, you know, and she would stay in touch and, you know, just she was my muse from then on. She just, you know, she showed me the way.

Susan MATTHEWS, Susan Matthews: And Hill’s group got one really important idea from a lawsuit Nancy was working on that they should invite any woman to join their suit as part of a class action. These women didn’t need to have had an abortion personally. The more women they convinced to join, the easier it would be to get individuals to speak up because they knew they wouldn’t be alone. They called themselves Women versus Connecticut in 1970. And and the other leaders started a recruitment drive. Rhea Hershman heard their pitch when she was a grad student at Wesleyan University.

Nancy Stearns: They played this tape of women talking about their illegal abortion experiences. And up until that point, this wasn’t a topic that I really thought very much about. And I remember listening to that tape and thinking, I want to do something to make sure that no woman ever has to tell a story like this again.

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Susan MATTHEWS, Susan Matthews: When Ann Hill gave these presentations, she would often tell her own story, and she always brought along a bunch of brochures.

Speaker 1: On the last page of the pamphlet was where you could sign up to be a plaintiff, and it was so encouraging to see so many hundreds of women just take that sheet and give it to us at the meetings. They were just so excited to be able to do something.

Susan MATTHEWS, Susan Matthews: Rhea Hershman says she lived in a house with eight other women. Every woman who heard the presentation, including her, signed on to the lawsuit and the list of plaintiffs just kept growing.

Speaker 1: I typed it on the Selectric typewriter at the Legal Services Office. We had 858 women, starting with Janice Appley, Abe Ely. We did it alphabetically. More came in when we just kept amending and amending and amending until we had like 2000 named plaintiffs.

Susan MATTHEWS, Susan Matthews: What did that mean for a typewritten list?

Speaker 1: Oh, my God. That was that was like 100 pages. And it was you know, I fortunately, I didn’t run out of Wite-Out or, you know, the correct tape, but it was it was crazy.

Susan MATTHEWS, Susan Matthews: The Women of Women versus Connecticut filed their lawsuit on March 2nd, 1971. The youngest plaintiff was 11 years old. The oldest was 83. The case would be officially known as I Believe versus Markle. I believe for the first plaintiff in the list and Markle for the state attorney. Ann Hill couldn’t argue the case herself because she was still in law school, but the plaintiffs were represented by six women lawyers. One of them was Nancy Stearns.

Nancy Stearns: I read an article when I was in law school that basically was arguing that restrictive abortion laws were unconstitutional. So I always had that in the back of my mind. And there had been some litigation up until that point, but there had never been any that I was aware of, where a woman affirmatively went into court to try to get a ruling that the laws were unconstitutional.

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Susan MATTHEWS, Susan Matthews: Nancy had done a lot of research and a lot of thinking, and she developed an argument that she thought could win in court.

Nancy Stearns: If you thought about the way in which an unplanned pregnancy and unwanted pregnancy could restrict your life from beginning to end. That certainly raised the question of liberty.

Susan MATTHEWS, Susan Matthews: Nancy believed that reproductive rights could be protected by the 14th Amendment of the U.S. Constitution. That amendment says that no state shall deprive any person of life, liberty or property without due process of law. A couple of recent Supreme Court decisions had made the 14th Amendment look like a promising avenue. One of them, Griswold versus Connecticut, protected the right of married couples to use contraception. The decision in that case was grounded in something novel, a phrase that isn’t found in the Constitution itself. The right to privacy.

Susan MATTHEWS, Susan Matthews: One of the lawyers who helped win the Griswold case was Katie Werbach. She was also on the legal team for women versus Connecticut. Katie Werbach and Nancy Stearns decided to use the same constitutional argument that had swayed the court in Griswold that the right to access birth control and now to have an abortion was protected by this newly enshrined right to privacy. Still, like any thorough lawyers, they weren’t going to stake their whole case on a single argument.

Nancy Stearns: We also thought about whether having to go through the nine months of pregnancy is basically a cruel and unusual punishment because of course, the man can walk away scot free and often does.

Susan MATTHEWS, Susan Matthews: The attorneys laid out nine different arguments for why Connecticut’s abortion law was unconstitutional. They presented those arguments to a panel of judges in the United States District Court for Ann Hill and the other women. This was a huge moment, a chance to have their voices heard by the men who had the power to change Connecticut’s abortion law. But the judges had other ideas.

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Speaker 1: We wanted to call a lot of witnesses. And that three judge panel said, you know, we have all of your affidavits and we have all of your written arguments and we think we can decide without having a hearing. So they did.

Susan MATTHEWS, Susan Matthews: One of the three judges on that panel, John Newman, had just been appointed by President Richard Nixon.

Speaker 7: And had only been a judge for two months. I was seven, 39 years old, probably too young to become a judge, but you don’t get to pick the year you start.

Susan MATTHEWS, Susan Matthews: Judge Newman’s more senior colleagues both wanted to issue a sweeping ruling.

Speaker 7: They thought they had to decide the ultimate question of whether the Connecticut legislature could protect the life of the fetus.

Susan MATTHEWS, Susan Matthews: The problem was those two judges were on opposite sides. One was adamant that the Connecticut law outlawing abortion should stay on the books. The other felt just as strongly that it should get tossed out. That meant Judge Newman would have to break the tie. And so he dug into the history of the Connecticut statute. At that point, it was more than 100 years old.

Speaker 7: The statute was sponsored by the Connecticut Medical Society because in 1860, the data was undisputed that abortion at that time was more dangerous than childbirth. It had not been passed to protect the life of the fetus, but to protect the health of the mother. And in 1972, the evidence was undisputed that childbirth was more dangerous to the health of the mother, indeed the life of the mother than abortion.

Susan MATTHEWS, Susan Matthews: Newman was convinced the law was outdated and needed to be struck down. It was now two judges against one. The women were going to win. Ria Hirshman remembers how gratifying it felt.

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Nancy Stearns: This was not a standard lawsuit. This was brilliant and creative and unusual and feminist and sometimes peculiar legal strategy that was taken on in the spirit of this is what we have to do, confronting a system that isn’t used to women rising up and saying, this just is not right.

Susan MATTHEWS, Susan Matthews: But the win would be short lived. There was a backlash brewing all over the nation in 1972. That backlash would come to Connecticut.

Speaker 4: I got fed up with the women’s liberation as running down motherhood and saying that it’s a menial, degrading career and that the home is a prison from which women should be liberated. Now, the home is the most fulfilling place for most women.

Susan MATTHEWS, Susan Matthews: We’ll be back in a minute.

Susan MATTHEWS, Susan Matthews: In the early 1970s, the abortion rights and anti-abortion movements weren’t clearly aligned with any political party up to that point. Republicans had a pretty liberal track record on reproductive health care.

Speaker 4: Leading national figures in the Republican Party had been very supportive of what was called family planning.

Susan MATTHEWS, Susan Matthews: Jill Lepore is a history professor at Harvard University.

Speaker 4: Eisenhower is a supporter of Planned Parenthood. George H.W. Bush is a supporter of Planned Parenthood and contraception.

Susan MATTHEWS, Susan Matthews: Two people were largely responsible for that alignment shifting. The first was a Catholic mother of six named Phyllis Schlafly.

Speaker 4: And the woman today has the freedom of choice. If she wants to take a job, she can, but she has the legal right not to if she doesn’t choose to. Schlafly is a powerhouse of American politics. She’s so influential as a sort of suburban conservative warrior. And in the guise of domesticity, she leads a moral crusade. And it is the crusade of conservatism, the need to save the family. She has a kind of Barbie doll. Look, Doris Day look like the blond bouffant, the pink twin set sweater, the coral lipstick. That’s important to her public persona. Actually, she’s a fierce intellectual, and she’s more ruthless than the most ruthless battlefield.

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Susan MATTHEWS, Susan Matthews: General Schlafly was a national security expert who gained influence in the Republican Party in the 1960s, but she didn’t present herself as a career woman.

Speaker 4: The most satisfying and rewarding career for most women is the career of being a wife and mother. My husband and my six children know that they come first and they are what mean the most to me.

Susan MATTHEWS, Susan Matthews: She became famous for opposing the Equal Rights Amendment, the effort to guarantee equal constitutional protections regardless of sex. She argued that women actually had it better, as things were, because they received protections and privileges as wives and mothers.

Speaker 4: Women should not be equal to men. I think under our present system in the United States, women enjoy a very wonderful status. I think it’s better than equality. I think women would be sacrificing many of the good things they now have and it would be taking a step downward to go for equality.

Susan MATTHEWS, Susan Matthews: Schlafly thought the whole Women’s Liberation Project was wrongheaded and that feminists were basically wrecking America.

Speaker 4: She’s scandalized by them and begins to heed what I think is her own women’s movement, a movement of conservative women. It’s an anti-feminist women’s movement, but it is a movement of women. And Schlafly was undeniably the leader of that movement. And by the early 1970s, as contraception and increasingly abortion laws are changing in states across the country, Schlafly begins to organize around those issues. Opponents saw it as a sinister plot to subject women to the draft, unisex toilets and possible loss of alimony. Some said it smelled of communism.

Susan MATTHEWS, Susan Matthews: Schlafly’s anti-feminist movement picked up followers all over the country.

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Speaker 4: Submission does not mean weakness.

Speaker 3: Let me remind you what happened to Adam.

Speaker 4: Sacrifice is not civility.

Speaker 3: When he led, he talked him into biting the apple.

Speaker 4: Femininity is not frivolity. The American people and the American women do not want MRA. They do not want abortion, they do not want lesbian privileges, and they do not want universal child care in the hands of a government.

Susan MATTHEWS, Susan Matthews: In 1972, a housewife in Connecticut started a group that she called Scratch Women’s Lib. They were stunted and a bit sarcastic. One of their picket signs said, It’s a woman’s world because it’s a man’s world. Scratch women’s lib didn’t just oppose the Equal Rights Amendment. They also campaigned against legalized abortion, saying there was no such thing as an unwanted baby. The group never attracted a big following. One of their protests drew just seven people. But the leader of scratch, women’s lib, claimed she spoke for Connecticut’s silent majority. The most powerful politician in America had said the same exact thing to you.

Speaker 3: The great silent majority. My fellow Americans, I ask for your support.

Susan MATTHEWS, Susan Matthews: Richard Nixon gave his silent majority speech in 1969, and it had nothing to do with abortion. He was aligning himself with people who still supported the Vietnam War. By 1970 and 1971, Nixon was trying to figure out who else he could reach out to.

Speaker 4: He is, of course, obsessed with the prospects of his re-election in 1972. You know, we know because of the White House tapes, the Nixon tapes, how keen he was to listen to schemes by which he could make this a political issue in the early morning.

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Speaker 3: Hi, John.

Susan MATTHEWS, Susan Matthews: Nixon understood that Catholic Democrats cared deeply about abortion, so deeply that they might switch their party affiliation if he gave them a little nudge about them. He got a lot of press for writing a letter to a Catholic cardinal voicing his support for the cardinal’s anti-abortion campaign.

Speaker 3: Apparently, it’s an anti-abortion letter. But what was the letter? What did it say?

Susan MATTHEWS, Susan Matthews: Nixon is saying he has no idea what was in the anti-abortion letter.

Speaker 3: Do the cardinal said something? It’s like you’ve been a courageous battler for the sanctity of human life and the abortion laws are bad things and so on and so forth.

Speaker 4: And there’s no evidence that this was a sincere moral conviction on Nixon’s part. I think his advisers, especially Buchanan, Pat Buchanan, convinced him that it can be manufactured into a single issue. Vote getter.

Susan MATTHEWS, Susan Matthews: In 1972. Pat Buchanan put together what he called an assault book, a list of the issues Republicans needed to focus on to win that November. The number one item on that list was abortion. Even though abortion reform had popular support in Connecticut, the state may have been more receptive to Richard Nixon’s message than anywhere else in America. Ann Hill Again.

Speaker 1: We were in maybe the most Catholic state in the country, and we knew that. And it was run by Catholic men. And we knew that.

Susan MATTHEWS, Susan Matthews: One of the men in charge was Connecticut’s Republican governor.

Speaker 1: Tommy Meskill. Little Tommy Meskill. He was short and he always carried a little bench, a step that he would put behind every podium, because otherwise you wouldn’t see his head over the podium. He was maybe five foot, five foot two, and he was opposing us and his attorney general were opposing us at every turn.

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Susan MATTHEWS, Susan Matthews: Thomas Meskill was not happy that the district court had legalized abortion in Connecticut, and he was determined to do something about it. A Nixon appointee, John Newman, had struck down the state’s abortion law. But Judge Newman didn’t close the door for politicians like Meskill.

Speaker 7: My opinion left it open to the Connecticut legislature if they wish to, to come back with a statute specifically protecting the life of the fetus.

Susan MATTHEWS, Susan Matthews: Meskill wasn’t going to pass up that opportunity. The governor believed life began at conception. Historian Amy Castleman has studied women versus Connecticut extensively.

Speaker 6: So the governor kind of seized on that one sentence in Japan and decided he would push through another law that had a pre ramble that said the purpose of this law is to protect unborn life.

Susan MATTHEWS, Susan Matthews: Within weeks, Meskill called the Connecticut legislature into a special session. The governor had a cozy relationship with those politicians who are predominantly male. Here’s how paternalistic that group was. The state capitol had a special dining hall for the lawmakers called the Hawaiian Room Women. Even women legislators were not allowed inside unless they were accompanied by a man. One state rep said all she could do with Stand at the door and look hungry within a minute. The men who hung out in the Hawaiian room would be the ones deciding the future of abortion in Connecticut before they voted. The bill got debated at a public hearing. Women versus Connecticut showed up in full force.

Speaker 1: And the place went was crazy. I mean, there are hundreds of us there.

Susan MATTHEWS, Susan Matthews: The anti-abortion side came out, too.

Speaker 1: They were just mostly men. And yeah, there were there are some women. There were some Phyllis Schlafly types.

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Susan MATTHEWS, Susan Matthews: The House minority leader told the crowd that feticide was just as wrong as homicide or genocide. He said, We must not allow the law of Sodom and Gomorrah to replace the Law of Sinai.

Speaker 1: I called them fetus fetishists. They were talking about when life begins. They were talking about the fetus. They didn’t talk about women.

Susan MATTHEWS, Susan Matthews: One of the main speakers on an side was the attorney, Katie Werbach.

Speaker 6: Katie pointed out that she was the first woman and she kept talking and the chair of the committee kept banging on his gavel. Your time is up. Your time is up. And then there would be all of these responses from the audience.

Speaker 1: And everyone was cheering for her.

Speaker 6: And he kept saying, this is not a ballgame. Be quiet.

Speaker 1: Then, of course, the committee met and they passed Tommy’s bill.

Susan MATTHEWS, Susan Matthews: Just five weeks after the district court had ruled in the women’s favor, abortion was outlawed in Connecticut again, this time with even harsher penalties. More after a quick break. I want to take a moment to acknowledge the International Women’s Media Foundation, the global non-profit that funds and supports women and non-binary journalists. They saw the value of our reporting and dove in early to make slow burn seventh season possible. The IWM F has enabled this type of work for more than 30 years and they can use your support to check them out at IWM. ASPHAUG Or go follow them on social media to learn more.

Susan MATTHEWS, Susan Matthews: The women of women versus Connecticut were angry when the state legislature outlawed abortion again. They were also prepared.

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Speaker 1: So that happened on May 23rd and we were ready for it. So we were back in the court on May 26th.

Susan MATTHEWS, Susan Matthews: The second case was almost identical to the one that came before. But now, instead of fighting a law that had been passed in the 1860s, they were fighting one that had gone through. Just a few days earlier. The same three judges, including John Newman, would hear the new case at a federal courthouse in Connecticut.

Speaker 7: It’s a large courtroom. Rather handsome. Has a couple of portraits on the walls. Rather dignified.

Susan MATTHEWS, Susan Matthews: Rhea Hershman had signed on as a plaintiff in Woman versus Connecticut after she’d heard their pitch.

Nancy Stearns: On the left was all these women sitting behind the women attorneys. It was a wonderful scene. We used to joke about who were the friends of the bride and who were the friends of the groom.

Speaker 1: And their side was empty, except for a few men, and then the male attorneys.

Susan MATTHEWS, Susan Matthews: By this point, Ann had finished law school and passed the bar exam.

Speaker 1: So I could be with the other lawyers in front of the bar. I didn’t have to be sitting back in the pews with the congregation.

Susan MATTHEWS, Susan Matthews: Do you remember what you wore to court that day?

Speaker 1: Oh, my gosh. We were wearing slacks to court. And I’m telling you, in those days, a woman wearing pants to court or a pants anywhere you were immediately. Women’s liberation. It was nuts.

Susan MATTHEWS, Susan Matthews: The first time around, the three judges had decided they didn’t need to hear any arguments that they could decide the case on their own. This time, they changed their minds. That meant some of the 2000 named plaintiffs got to tell their stories in court.

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Speaker 1: The women would just talk about the horrible things that, you know, terminating a pregnancy illegally had caused in their lives or their fear of not being able to terminate a pregnancy. And so these were incredibly moving stories, and I think there wasn’t a dry eye. It was amazing to see so many women in court. You know, these were secrets that we had shared. But now they were telling their truth on the record. In a federal court.

Susan MATTHEWS, Susan Matthews: The attorneys representing the state of Connecticut argued that life begins at conception and that a fetus has rights that need to be protected. One doctor testified that he didn’t perform abortions because he considered both the mother and fetus his patients. There was also a Canadian physician who showed a short film of tiny fetuses getting probed with needles.

Speaker 1: And then there would be this hand reaching in with like a big needle and poking the fetus. And the fetus would move around as anything in the in this liquid would move around. And he was explaining to the court that this experiment with fetuses, God knows where he got them, showed that the fetuses had fear and the fetuses had real emotions.

Susan MATTHEWS, Susan Matthews: Then one of the lawyers for women versus Connecticut got to cross-examine him.

Speaker 1: She was asking like, where did you get these fetuses? And you’re saying that because the fetus moves in the liquid when you poke it, that that to you is an indication that it has an emotion. And he didn’t answer anything very well at all and finally got off the stand and left in a huff.

Susan MATTHEWS, Susan Matthews: Once again, it would be up to the three judge panel to decide who’d made the better case, just like before. One judge wanted to leave the abortion ban in place and another wanted to repeal it.

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Speaker 7: Because for them, the case was no different than the first case.

Susan MATTHEWS, Susan Matthews: And so for a second time, John Newman would break the tie.

Speaker 7: I certainly knew my vote was going to be decisive.

Susan MATTHEWS, Susan Matthews: This time, Newman wasn’t so sure what he wanted to do. The question he was facing felt more complicated than anything he’d ever ruled on.

Speaker 7: Usually when there’s a constitutional dispute, the nature of the interest on the state side is clear. This interest was different from any other interest I’d ever seen, because what the interest was was a matter of dispute among the public.

Susan MATTHEWS, Susan Matthews: Judge Newman found Nancy Stern’s and Katie Orbach’s privacy argument to be persuasive.

Speaker 7: And I started by saying, yes, the Supreme Court recognizes a woman’s right to privacy in matters of marriage and sex.

Susan MATTHEWS, Susan Matthews: But he also acknowledged that the people worried about the fetus had a point.

Speaker 7: So then they said, well, what we’re really doing is making sure that this fetus has an opportunity to be born. Well, that interest seemed to me to be quite significant. And I thought the state does have some interest in having a fetus become a child.

Susan MATTHEWS, Susan Matthews: Newman thought the fetus should be protected, but he didn’t think that protection should always outweigh the woman’s rights.

Speaker 7: It seemed to me that the state’s interest only became compelling after viability because if the fetus was aborted before viability, that fetus could not become a born child.

Susan MATTHEWS, Susan Matthews: Viability is the moment when a fetus can survive outside of the womb. It had never been a constitutionally significant standard. Instead, many statutes focused on quickening the moment when a woman can feel fetal movement. That’s what the rule had been in Florida when Shirley Wheeler got convicted of manslaughter.

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Susan MATTHEWS, Susan Matthews: Judge Newman thought a viability standard made more sense. After that moment, he thought a fetus could claim some legal protections. In the early 1970s. The consensus was that viability comes a few weeks after quickening around 28 weeks into a pregnancy. Newman didn’t note the exact number of weeks in his opinion. He understood that the viability threshold might change as medical science advanced. He was right about that. Today it comes at roughly 23 or 24 weeks. What Newman did say is that banning abortions pre viability violated women’s constitutional rights. That meant the law could not stand. Ann Hill Nancy Stearns and the 2000 plaintiffs had one. Again, abortion was legal in Connecticut.

Susan MATTHEWS, Susan Matthews: And do you remember celebrating this time?

Speaker 1: I don’t. We were so busy. It wasn’t that we didn’t know how to party, but we didn’t have time.

Susan MATTHEWS, Susan Matthews: But and did find time to pore over Judge Newman’s opinion in Abilene versus Markel.

Speaker 1: I loved reading it. It was just so gratifying because a lot of times in both those decisions, we felt that they stole from us, which is fine. Judges can plagiarize. You know, they can take from your briefs. And, you know, when you win a case, big is when they use your words. And so that was really satisfying.

Susan MATTHEWS, Susan Matthews: One of the lawyers for women versus Connecticut told a reporter, all women have won. Today there would still be one more roadblock. The Connecticut government appealed to the Supreme Court, which quickly issued its own decision. The state’s abortion ban would stay in place until the nine justices ruled on a different case just a few weeks after Judge Newman released his opinion. The Supreme Court heard another round of oral arguments in that case, Roe v Wade.

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Speaker 7: Somebody told me about the argument in Rome and the lawyer for the women, Sarah Weddington, was trying to tell the court about my opinion and she said there’s this opinion from a district judge in Connecticut.

Speaker 4: One of the cases decided since our last argument December 13th was the second Connecticut case, adult versus Marshall, which judge?

Speaker 7: And then she said, I’ve forgotten his name.

Susan MATTHEWS, Susan Matthews: Chief Justice Warren Burger interjected.

Speaker 4: Excuse me.

Speaker 7: He leaned over and said, his name is Newman.

Nancy Stearns: Namely, wrote the opinion.

Speaker 4: Yes, thank you. In that case, that three judge court held the Connecticut statute slightly revised.

Susan MATTHEWS, Susan Matthews: John Newman is 90 years old now and he’s still serving as a judge. He remains pretty modest about.

Nancy Stearns: All of this.

Speaker 7: I have no illusions that my opinion had any bearing on the outcome of Roe Roe is going to be decided the way they were going to decide it. But I think my opinion did at least get the concept of viability into their thinking.

Susan MATTHEWS, Susan Matthews: Judge Newman wasn’t the only person whose efforts were recognized by the Supreme Court.

Speaker 1: A lot of what the women said was put in footnotes by Justice Blackman in Roe v Wade, because ours was, I guess, the only hearing in any abortion case in federal court in the country where women were actually heard.

Susan MATTHEWS, Susan Matthews: And didn’t try to become president of the United States. Instead, she helped found a public interest law firm, the Connecticut Women’s Educational and Legal Fund. She says that women versus Connecticut changed her life.

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Speaker 1: It empowered me as a person and it empowered me as a lawyer. I thought that lawyers could make change and it was just exhilarating. We believed then and I believe now that women have to unite to free themselves from a culture that still defines them as daughters, wives and mothers. And we just have to be free to be full human beings. And we don’t expected those things will be given to us. And that’s why we put together women versus Connecticut. We knew we had to fight.

Susan MATTHEWS, Susan Matthews: Next time on slow burn, the fight for legalized abortion reaches the end of the line.

Speaker 3: In a sense. Roe v Wade was, you know, the surfboard at the top of that wave, but there was a real wave. It became a lightning rod for politics and for the Supreme Court.

Susan MATTHEWS, Susan Matthews: We’ll hear all about that next week in our season finale.

Susan MATTHEWS, Susan Matthews: Slow burn is produced by Samira Tazari. So He Summergrad. Soul Werthan and me Susan Matthews.

Susan MATTHEWS, Susan Matthews: Derek John is senior supervising producer of Narrative Podcasts Editorial Direction by Josh Levin Derek, John and Johanna Zorn Merritt. Jacob is our technical director. Our theme music was composed by Alexis Cuadrado. Derek Johnson did our cover art based on a photo provided by Robert Wheeler. We had research help from Bridget Dunlap. Some of the audio you heard in our show comes from Ann Hill. This reporting was supported by the International Women’s Media Foundation’s Howard G. Buffett Fund for Women Journalists.

Susan MATTHEWS, Susan Matthews: We also have a special announcement. We’re doing a live event. If you’re in New York on Thursday, June 23rd, join us at the Bell House in Brooklyn to hear a special slow burn live show and to hear from some special guests, including my colleagues at Slate who have been covering the Supreme Court. Get your tickets at Slate.com slash supreme.

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Susan MATTHEWS, Susan Matthews: Slow Burn is a production of Slate Plus Slate’s membership program. You can sign up for Slate Plus two here a bonus episode every week this season. We’ll go behind the scenes and you get access to some exclusive interviews that’ll explore more about the history of abortion in America. In this week’s bonus episode, you’ll hear my conversation with Slate senior writers Mark Joseph Stern and Kristina Carucci. We’ll be talking about how various states are handling abortion laws right now. To listen to that, head over to Slate.com slash slow burn to sign up now. We couldn’t make a slow burn without the support of Slate Plus. So please consider becoming a member at Slate.com slash slow burn.

Susan MATTHEWS, Susan Matthews: And if you’re looking for breaking news analysis of everything going on with the Supreme Court right now, you should subscribe to Slate’s legal podcast Amicus, hosted by Dahlia Lithwick. Amicus has new episodes every Saturday this month to tell you all about the major decisions being released this SCOTUS term, and there will be special episodes for Slate plus members to find Amicus wherever you listen. We also wanted to encourage listeners to check out Jill Lepore podcast, The Last Archive. If you like Slow Burn, you’ll love the last archive. It’s a history podcast that focuses on how we know what we know. Special thanks to Arielle Stevenson. Doug McKnight.

Susan MATTHEWS, Susan Matthews: Laura Bennett. Rebecca Onion, Cristina Carter Rucci. Madeline Ducharme. Evan Chang. Mark Joseph Stern. Seth Brown. Rachel Strom. Ben Richmond Chow to Bill Perry, Katie Rayford, Lowen, Lu and Alicia montgomery, Slate’s VP of Audio. Thanks for listening. We’ll see you next week.