Before Roe: How Pa. hospitals used a legal loophole to provide abortions

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(Lucy Perkins / 90.5 WESA)

(Lucy Perkins / 90.5 WESA)

Charlynn Bailey’s first day of work at Magee was Jan. 5, 1970. She was a nursing assistant in the emergency department, where staff cared for women who had miscarriages or pregnancy complications.

“We also commonly had patients that had undergone illegal abortions and were bleeding, in pain, high fever, sick people,” Bailey said.

Bailey said women who had botched procedures were afraid of getting in trouble, and often waited a long time before they came to the hospital. Many wouldn’t even tell doctors what they had done or what instruments were used.

“‘Instruments,’ and I use that term loosely because things like knitting needles, hangers…you know when you have a spray bottle and there’s a little tube that goes down to the bottom of the bottle? Things like that,” Bailey said.

The goal was to insert these “instruments” into the uterus. But people who weren’t properly trained could perforate the woman’s uterus or bowel.

That’s how women often ended up at Magee with Charlynn Bailey. She took their vital signs and filled out their forms. But she wasn’t the only one who asked patients questions.

“The police could be called, detectives could come in. They would just hammer these patients with questions. They really wanted to know … who did it,” she said.

Claire Keyes, who ran Allegheny Reproductive Health Center for 30 years, said that women who could afford to would be referred to doctors in New York or Washington, D.C., where abortion was legal.

“Women who had the money would fly into the airport in New York,” Keyes said. “They would be told, ‘meet at such and such an area inside the airport, and look for the woman in the blue smock with the big smiley face button.’ And as flights all came in, those women would be gathered and put in the van and taken to the abortion facility that that representative came from. They would have their procedures and then they would go back to the airport and go home.”

All of this happened because abortion was illegal in Pennsylvania. The provision that said so was just a few lines in a 1939 statute. Here’s what it says:

Section 718: Abortion. Whoever with intent to procure the miscarriage of any woman, unlawfully administers to her any poison drug or substance, or unlawfully uses any instrument or other means or like intent, is guilty of a felony.

The statute said that abortions obtained “unlawfully” were illegal, but never defined what “unlawful” meant. So, in 1968, doctors at Magee and West Penn decided that abortions were lawful if continuing the pregnancy would negatively affect the physical or mental health of the mother.

Doctors would conduct a physical and psychological evaluation. Then, if her case was approved, she could get an abortion either from a private physician or at the hospital.

Retired doctor Robert Thompson worked at Magee for over 45 years. He was a resident there after Roe v. Wade, the Supreme Court ruling that defined abortion a Constitutional right, was decided. But he was familiar with the process doctors had used.

“[The evaluation] was more to cover your tracks,” he said. “[I]f you wrote it down in a normal, medical manner, it passed.”

Thompson said that over half the doctors in the department performed the procedure, and that no physician was forced to do them.

“It was a more libertarian attitude. It’s like ‘you do what you do, I don’t wanna do this.’”

But there was significant pushback. Magee doctors who were against abortion filed lawsuits on behalf of unborn children. There were opponents outside the hospital too. Robert Duggan was the Allegheny County District Attorney in the lead-up to the Roe decision. He made headlines by trying to charge doctors with “conspiracy to commit an abortion.”

In one prominent 1970 case, Duggan tried to obtain patient records from Magee to use as evidence against doctors. That prompted courtroom fights as women who had had abortions there filed an injunction to prevent Duggan from getting the documents.

Retired nurse Charlynn Bailey said everything changed in 1973.

“After Roe v Wade … the patients who were sick, who came into the emergency room, stopped. It just stopped,” said Bailey.

Women who were getting unsafe procedures could now go to clinics that provided abortions legally. Women’s Health Services was the first clinic to open in Pittsburgh. It opened its doors soon after the highly anticipated Supreme Court decision.

“Pittsburgh, having this small group of very forward-looking people, they were ready,” said Claire Keyes. “They had the building. The lease was signed in anticipation of the decision. They had the list of all the supplies that would be needed, and just a few months later, Women’s Health Services opened their doors and started doing abortions.”

Doctor Thompson was also associate medical director at Women’s Health Services in addition to his work at Magee. He estimated that the clinic did around 11,000 abortions per year when he worked there.

Pittsburgh became one of the biggest abortion providers in the state, and Pennsylvania was one of the top providers in the country in the years after Roe.

Claire Keyes says clinics didn’t get a lot of pushback when they opened — at first. A very different narrative would dominate the abortion rights conversation in Pittsburgh in the 1980s.

“Certainly there were people [opposed to abortion], they just weren’t as organized,” Keyes said of the early days after Roe. “I can’t tell you when anything started at our clinic, but I can tell you that we were specifically the base station for the original training films for protests of a larger sort. And that’s when we were having 600-800 protesters, per clinic day … but that’s another story in and of itself.”

 This story is a part of a series looking at the history of abortion access and abortion legislation in Pennsylvania. 

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