Why would four doctors increase their risk of felony prosecution for performing an abortion by requiring Michelman to obtain written consent from her husband who had abandoned her? If their concern was a civil lawsuit, wouldn’t that have been outweighed by avoiding prison time?
On January 12, 2006, Kate Michelman testified before the Senate Judiciary Committee (SJC) in opposition to the confirmation of Judge Samuel Alito to the U.S. Supreme Court.
On January 9, 2006, the Web site "Democracy Now" posted an interview titled: "Fmr. NARAL Head Kate Michelman on Alito and Her Own Pre-Roe v. Wade Experience Getting an Abortion and Consent From the Husband Who Abandoned Her."
Michelman testified that she had a "therapeutic abortion" in a Pennsylvania hospital in 1969 after complying with a "state law" that required her to obtain her husband’s consent. Her story raises serious questions. There was no Pennsylvania law that permitted therapeutic abortion. In fact, there were at least two doctors prosecuted for performing abortion around that time.
On January 11, 1967, a jury in Montgomery County, Pa., convicted Lamar T. Zimmerman, M.D., on a charge of performing an illegal abortion in violation of the state’s penal code, Commonwealth v. Zimmerman. In 1969, the Superior Court vacated his conviction and ordered a new trial. The court found “the circumstantial evidence did not establish guilt beyond a reasonable doubt.”
In 1968, in Commonwealth v. Page, a motorcycle mechanic pleaded guilty to performing two abortions in violation of Section 718 of the Pennsylvania penal code, which provided:
Any person who with intent to procure the miscarriage of any woman unlawfully administers a drug or unlawfully uses an instrument is guilty of felony, and upon conviction thereof, shall be sentenced to pay a fine not exceeding $3,000, or undergo imprisonment by separate or solitary confinement at labor not exceeding five years, or both.
Page challenged his conviction arguing that the statute violated provisions of the U.S. Constitution. On July 23, 1970, the Court of Common Pleas for Centre County reversed his conviction. The court held Section 718 unconstitutional citing Griswold v. Connecticut (1965), stating: “It is a ‘broad brush’ statute prohibiting all abortions without exception within the State of Pennsylvania.” The court noted that the statute “appl[ies] in bold fiat to medical doctors who possess the requisite skill to easily perform a safe abortion during at least the first trimester of pregnancy.”
The state appealed. The Pennsylvania Supreme Court affirmed the ruling in 1973.
The court included in its ruling, a companion case, Commonwealth v. King (1968). An Allegheny County court had convicted Benjamin King, M.D., in 1968 of performing an abortion in violation of Section 719 of the penal code, which doubled the penalty for an abortion resulting in death. The court sentenced King to two-to-five years’ imprisonment. The Pennsylvania Supreme Court reversed the conviction citing the U.S. Supreme Court’s ruling in Roe v. Wade (1973).
At trial, neither Dr. Zimmerman in 1967 nor Dr. King in 1968 claimed to be exempted from prosecution for performing a “therapeutic abortion.” There was no exemption in sections 718 or 719 of the penal code, and there was no Pennsylvania law that permitted therapeutic abortions.
Consequently, Michelman’s testimony before the Senate Judiciary Committee and her interview posted on the “Democracy Now” Web site raise several questions about her 1969 “therapeutic abortion,” including:
1. Michelman said, “And so I made the choice to have an abortion, finding that abortion was illegal in Pennsylvania at the time. And I had a choice between a back-alley abortion, which, I had heard, was devastatingly dangerous. I even had the number of an illegal abortionist that I carried with me at all times.”
- Did she consider the abortionist “illegal” because abortion was illegal in Pennsylvania, or because the abortionist wasn’t a doctor?
2. Michelman said, “I was told by a doctor that I could apply to a hospital for a therapeutic abortion. But to get this therapeutic abortion, I had to be rendered unfit. I had to be medically designated as needing an abortion in order to get this hospital abortion.”
- Did she ask what law required her to be “rendered unfit”?
- Did she ask what it meant?
- Did she ask what law permitted a “medically designated” abortion?
- Did she ask what medical reasons would qualify?
- Did she assume it was legal?
3. Michelman said “she was compelled to submit to two interrogations before an all-male panel of doctors. They probed every aspect of my private life — from what kind of sex life my husband and I had to whether I was capable of dressing my children in the morning.”
- Did she tell the doctors that her husband had abandoned her?
- Did she tell them that she no longer had a sex life with her husband?
- Assuming she didn’t claim to be unfit, what medical reason did she give?
- Did the doctors tell her what the abortion would cost?
4. Michelman said, “Eventually, they gave their permission.”
- Was she informed in person, by phone or was a notification mailed to her?
- Was she told that she was “rendered unfit”?
- Was she told it was because of medical reasons?
- Was a reason given?
5. Michelman said “she had been admitted to the hospital and was awaiting the procedure when a nurse arrived to tell me that state law imposed yet another humiliating burden. The government required me to obtain my husband’s consent.”
She also said: “And just as I was about to have the procedure, almost, I was told that they had forgotten one more legal requirement, and that was that I needed the permission of my husband. I was — I said, ‘You can’t be serious. My husband has left us. I don’t even know where he is.’ And they said, ‘That is the law. You need the permission or we cannot do the procedure.’ I had to leave the hospital and find my husband, who did give me his written permission.”
- Had she or her husband filed for divorce or legal separation?
- Was she seeking an annulment? If so, did she tell the doctors or nurse?
- Did she ask what “state law” or “government” required her husband’s consent?
- If they were in the process of divorce, separation or annulment, did she ask if the law still applied?
- If she did ask, what was the answer?
- How did she locate her husband, since she didn’t know where he was?
- Did the hospital provide a consent form for him to sign naming the hospital and doctor(s)?
- Did he write a statement of consent naming the doctor(s) and hospital?
- Despite two different interrogations by a panel of four doctors, including “what kind of sex life my husband and I had,” how likely is it that four doctors forgot to tell her that she needed her husband’s written permission for the abortion?
- How likely is it that in 1969, none of the four doctors had heard of the felony convictions of Dr. King in 1968 or Dr. Zimmerman in 1967?
6. Michelman said, “Because this all occurred prior to Roe, I was legally prevented from acting privately on my decision.”
- If she had a “therapeutic abortion” and fulfilled the “law” by obtaining her husband’s consent, how was she “legally prevented” from having an abortion?
7. Michelman said, “After a long period of searching — of balancing my moral and religious values about the newly developing life with my responsibilities to my three young daughters — I decided to have an abortion.”
- Does she disagree with Roe v. Wade that “the developing fetus” is merely “potential life”?
8. Michelman told her story to the Senate Judiciary Committee as part of her effort to defeat Judge Alito’s confirmation. She told the committee, “[T]he contrast between Judge Alito and the Justice he would replace is stark.”
- Is the contrast between Michelman’s story and Pennsylvania law somewhat “stark”?
- Since Sen. Arlen Specter (R-Pa.) was a prosecutor in Pennsylvania from 1959 to 1973, wouldn’t he have been well-acquainted with the state’s penal code and case law in 1969?
- How well would Michelman’s story withstand the kind of aggressive questioning Specter did of Anita Hill when she testified before the Senate Judiciary Committee in opposition to the confirmation of Clarence Thomas?
No doubt Kate Michelman would want her testimony to be fairly judged. One might expect her to do the same for Samuel Alito.