The Middletown Press (Middletown, CT)
CT: From no to Roe
State was first to outlaw abortion, one of the first to affirm abortion rights
The U.S. Supreme Court last week declined to hear a case challenging a Texas law banning nearly all abortions and offering $10,000 to any resident who sues clinics that violate the law.
The decision has some expecting other states to follow in restricting abortion
rights. But in Connecticut, an effort to support and affirm reproductive rights did the opposite decades ago when the state passed a law that guarantees a woman’s right to an abortion.
The purpose of that law, passed in 1990, was to protect the rights granted by the U.S. Supreme Court’s decision in Roe v. Wade, which made abortion legal in all 50 states. Connecticut was one of the first few states to pass a law affirming the decision in Roe.
“It’s not like we had this great vision,” former Connecticut Lt. Gov. Nancy Wyman said. “It’s that we had this great fear that it could be withdrawn from women.”
Wyman was a member of the state House of Representatives when that law was passed. She said she feels the same fear now that Texas and other states are moving to criminalize abortion.
“Now all of a sudden this is coming on,” she said. “I have three granddaughters. I want them to have the choice about their bodies. Not anybody else. Not even their grandmother.”
Connecticut's state law reads: “The decision to terminate a pregnancy prior to the viability of the fetus shall be solely that of the pregnant woman in consultation with her physician.”
That language, according to state Senate President Pro Tempore Martin Looney, D-New Haven, was intentional. Looney was also in the state House in 1990.
“We at the time thought that it would be prudent to place the language of Roe v. Wade in Connecticut statute so it would not be dependent on a court ruling,” he said. “We thought that at some point, something might happen to destabilize Roe v. Wade.”
But Connecticut wasn’t always so progressive. Abortion was illegal in the state until months before Roe was decided, and Connecticut was the first U.S. state to pass an anti-abortion law in 1821.
Between 1821 and 1973 — first making abortion illegal and then a panel of federal judges overturning that law — Connecticut played an important role in the movement toward abortion rights.
Griswold and Planned Parenthood
Catherine Roraback is central to the history of abortion law in Connecticut.
“She was in the trenches from the very beginning,” said Superior Court Judge Andrew Roraback, her cousin and a former state senator.
Both Catherine, who died in 2007, and Andrew came from a well-known legal family.
“There’s been 11 members of the Roraback family practicing law in Connecticut since Catherine’s grandfather was admitted to the bar in 1872,” Andrew Roraback said.
Catherine made a name for herself as a civil rights lawyer, known as much for her defense of communists during the McCarthy era as she was for her defense of women’s rights.
“There was always a great deal of pride in the family for her bravery,” Andrew Roraback said of his cousin, calling her “indefatigable in terms of her work ethic.”
“Nowadays, you’d call her a disruptor,” he said.
Almost a decade before Roe, the case Griswold v. Connecticut set the stage for a discussion of reproductive rights. The use of contraceptives was illegal in Connecticut in 1965, until attorney Tom Emerson successfully argued before the U.S. Supreme Court that a couple had the right to use contraception, if they so chose.
And Catherine Roraback was sitting in the chair next to him.
“I would think that if you asked her what her signature achievement was in the realm of civil rights, it would be Griswold and its progeny,” Andrew Roraback said.
In 1961, then-Planned Parenthood Executive Director Estelle Griswold opened a birth control clinic in New Haven, with the intention of challenging the state’s ban on contraception.
According to reports from the time, the clinic had 10 patients on opening day, along with requests for contraception. Griswold was arrested and fined $100, and the conviction was upheld by the state Supreme Court.
In 1965, that case reached the U.S. Supreme Court, which ruled in favor of Griswold, striking down Connecticut’s ban on contraception and setting the stage for Roe nearly a decade later.
“It really did establish the right to privacy for married couples to use contraception without government interference,” said Gretchen Raffa, senior director of public policy, advocacy and organizing for Planned Parenthood of Southern New England. “And that was radical in 1965. That was a radical thought. And, you know, that really paved the way to get to the other landmark decisions around the right to privacy, including Roe v. Wade.”
Abele and Roe
Abortion remained illegal in Connecticut until 1972, just before Roe v. Wade was decided. Fifty years ago in Connecticut, a doctor performing an abortion could be fined $1,000 and imprisoned for up to five years.
“The woman who had the abortion can be fined $500 and imprisoned up to two years,” according to a 1970 organizing pamphlet intended to find women interested in participating in a class action suit challenging the law. “Anyone who helped her arrange the abortion can be fined $500 and imprisoned for up to one year.”
There had been previous challenges to laws restricting reproductive freedoms, Griswold among them, but the group known as Women vs. Connecticut represented something of a paradigm shift, according to Reva Siegel, a professor at the Yale Law School and an expert in the history of abortion law.
As the 1970s began, “there are beginning to be, for the very first time, women who have the degrees and the skills to fashion law on their own behalf rather than rely on men to defend them,” she said.
Women vs. Connecticut began bringing test cases to the courts, in the hopes of overturning the state’s anti-abortion statute.
In 1971, the group filed a lawsuit, with 858 women signed on as plaintiffs. The legal team was all women, led by attorney Catherine Roraback.
“It’s pretty widely recognized that Catherine Roraback was at the head of this evolution,” Andrew Roraback said. “If she wasn't in the driver’s seat, she was certainly in the front of the bus.”
The case, which became known as Abele v. Markle, became the basis for the U.S. Supreme Court decision in Roe two years later.
“It’s not reasoned the way Roe’s reasoned. You can see the feminist energy,” Siegel said. “This case has this whole class of plaintiffs, and it’s raising all types of claims.”
A panel of federal judges ruled the state’s antiabortion statute was, in fact, unconstitutional, so then-Gov. Thomas Meskill encouraged the state legislature to rewrite the law to get around the court’s decision.
That rewritten law was again ruled unconstitutional and Connecticut’s anti-abortion statute was repealed, a few months before the U.S. Supreme Court decided on Roe v. Wade, making abortion legal in all 50 states.
“It actually does shape the decision in Roe,” Siegel said.
The future
When Connecticut passed its law in 1990, affirming a woman’s right to an abortion, Wyman said it was a bipartisan group of legislators, male and female, who thought it was necessary.
“We were all scared that something would happen in the federal government that would change this in a different way, and I guess we were right,” she said. “There were so many of us in the legislature that said we also have to do this on the local level.”
Connecticut was one of the first four states to pass a law, affirming the U.S. Supreme Court’s decision in Roe, though there are now 13 such state laws on the books. Looney said he believes other states will follow suit, either affirming or challenging abortion rights.
“You may see more efforts in blue states to do what we did,” he said.
Raffa said conservative states are beginning to follow Texas’ model, including Florida and Arkansas. She said, “we'll see copycat bills” around the country.
Connecticut Attorney General William Tong filed a brief along with 20 other states last week in support of a challenge against South Carolina’s Fetal Heartbeat and Protection from Abortion Act, which bans abortions after the detection of a fetal heartbeat.
“We are witnessing a cruel and relentless attack on a woman’s right to choose,” Tong said in a release. “This South Carolina law is just the latest unlawful and draconian legislation aimed at making it more difficult for women to access health care.”
Raffa said laws like those in Texas and South Carolina have been “decades in the making.”
“It's part of a national agenda to end abortion access in this country,” she said. “The Texas law does set a dangerous legal precedent and could clear the path for the states to override people's constitutional rights.”
That is a possibility, Siegel said. The country could be divided, “as it was just before Roe,” or the U.S. Supreme Court might try to “impose a uniform fetal protective law on the whole country and there is a counter-mobilization against the court.”
Raffa said regardless of what happens to abortion rights at the federal level, access to health care, including abortions, remains a problem in Connecticut.
“Connecticut has done what we can to protect the legal right to abortion, but abortion is not accessible to all people that need abortion,” she said. “Even in a state like Connecticut, we know that not everyone has equitable access to health care.”