Now that the Supreme Court has rescinded the constitutional right to a legal abortion in Dobbs v. Jackson Women’s Health Organization, the story of Shirley Wheeler, who had an illegal abortion in Florida in 1970, is even more poignant. Wheeler’s story, which is featured in the new season of Slate’s Slow Burn podcast, took place nearly three years before Roe v. Wade legalized abortion at the federal level in 1973 — at a time when abortion’s legality was dictated by an uneven patchwork of different state laws.
Wheeler’s arrest, prosecution, conviction and sentencing over 50 years ago in a state with a restrictive abortion law is an important story to remember now that millions of women across America are again facing similar barriers.
When the 22-year-old Wheeler learned that she was pregnant in 1970, she was determined to avoid the fate she had suffered four years earlier. In 1966, she got pregnant after being raped by two youths. Without the means to obtain an abortion, she was forced to give birth to a son, whom she relinquished to relatives in North Carolina, her home state, to raise. When she became pregnant again in 1970 after moving to Florida, she sought an abortion — even though this time she was in a committed relationship with the father. As she later recalled, “I chose not to bring another child into this world that I couldn’t afford to take care of.”
At the time, Florida’s abortion statute — passed in 1866 — allowed the procedure only before “quickening,” a subjective standard relied upon in the 19th century to mark the first moment a pregnant woman felt fetal movement. Wheeler could not afford to travel to another state such as New York, which passed the nation’s most expansive abortion reform law in the spring of 1970, allowing legal abortion through the 24th week of pregnancy. Strapped for cash and initially unable to scrape together the $300 needed for an illegal abortion in Florida, Wheeler and her boyfriend could not take action until an income tax refund fortuitously came through. After her first visit to an illegal practitioner failed to terminate the pregnancy, a second attempt worked, although it caused her to hemorrhage and nearly killed her.
Shortly after Wheeler received emergency medical care at a hospital to stop the bleeding, police came to her home to arrest her. She spent several days in jail, where she was shown pictures of fetuses. She recalled the jailhouse doctor diagnosing her with vertigo, “and then he cussed me out.” Wheeler was indicted on a charge of aborting a “quick” fetus, although she maintained she had not felt fetal movement.
Wheeler’s case pointed out the disparities facing women who wanted to end a pregnancy. In 1966, the same year Wheeler had her first unwanted pregnancy, a New York woman named Claire McAlpin was indicted and faced a grand jury for “the crime of having artificially and criminally by the use of an instrument (a hairpin) induced an abortion upon her own person (Penal Law § 81).” McAlpin, however, could afford a good lawyer. Her attorney had the doctor’s testimony struck from the record, and the judge soon dismissed the indictment.
But Wheeler — unlike McAlpin and countless other women who had or attempted to have an abortion in the years before Roe — was poor and living in a Southern state. She initially relied on a public defender in a state that sought to prosecute those providing abortions. Wheeler refused to succumb to police pressure and identify the person who performed her illegal abortion, even though the practitioner failed to terminate her pregnancy the first time and caused her to hemorrhage on the second, successful attempt.
Wheeler, therefore, faced the maximum penalty for manslaughter: 20 years in prison. Without financial resources or family support, Wheeler wrote to the Playboy Foundation for help, and it, in turn, paid Cyril Means, a professor at New York University Law School, to fly down and assist in her defense. Means was brought in as co-counsel at the 11th hour, however, and a jury of three women and three men convicted Wheeler of manslaughter under a section of Florida’s homicide law.
The rare conviction drew national attention. As the nation waited on Wheeler’s October 1971 sentencing, the newly formed Women’s National Abortion Action Coalition proclaimed its support, sending telegrams, petitioning the governor and vowing to take to the streets
Unlike “Jane Roe,” the person at the center of the Roe v. Wade case, Wheeler’s identity and experience was public as soon as her court case made the news. Overall, she was portrayed as a sympathetic figure. She was an everywoman with a boyfriend and a dog, whose lived experience showcased the dangers of antiquated laws and their enforcement. Nancy Stearns — a pioneering abortion lawyer in New York, who eventually took Wheeler’s case after the two women began writing to each other — remarked of her client, “Shirley is a very compelling person. She’s quiet and unassuming, yet very strong in her beliefs. And she’s not just a middle-class kid who got in trouble. She’s been through a lot of hard times.” Wheeler maintained that she was charged precisely because of “her lifestyle, because she was not wealthy and because she refused to cooperate with the police and identify her abortionist.”
Despite the help of Stearns and other prominent abortion rights lawyers who volunteered to work on the case once it gained notoriety in the press, the Florida judge convicted Wheeler of manslaughter and sentenced her to two years of probation that included humiliating stipulations undoubtedly designed to police her sexuality. She was not allowed, for example, to enter a bar or to stay out all night.
In a more dramatic attempt by the state to properly channel Wheeler’s sexual activity, she was given one week to leave the state of Florida unless she married her boyfriend, 23-year old Robert Wheeler. Although she had taken her boyfriend’s last name, Wheeler did not wish to marry him because she had a previous failed marriage at a young age. New York’s Village Voice newspaper summed it up this way: “Ms. Wheeler was told that the next time she goes to bed with a man, she had better make sure she has a marriage license hanging over it.” Wheeler was forced to return to North Carolina and live with a brother.
The outrageous conviction and sentencing was a catalyst for Wheeler and many women across the country. They used her experience as a rallying cry to ensure that all women had the right to a legal abortion.
But now that the Supreme Court has rescinded this constitutional right, state legislators and governors are able to deny women access to legal abortion. This is particularly true in many Southern states — where the prosecution of women who, like Shirley Wheeler more than 50 years ago, cannot afford to travel out of state to obtain a legal abortion is possible again.