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Shumita Basu, Narrating: This is “In Conversation,” from Apple News. I'm Shumita Basu. Today, what a pre-"Roe" past tells us about a post-"Roe" future.
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Basu, Narrating: In 1971, a woman named Shirley Wheeler spoke at rally for abortion rights.
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Shirley Wheeler: Sisters, we must unite to fight to repeal our restrictive abortion laws. I have been labeled a criminal by this society.
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Basu, Narrating: Shirley is believed to be the first American woman to be held criminally responsible for having an abortion. She was found guilty of manslaughter. She became an important voice in the reproductive rights movement that led up to the "Roe v. Wade" decision in 1973, but Shirley's story has mostly been lost to history.
Susan Matthews: I was really struck by just how difficult it was to really find her full story anywhere.
Basu, Narrating: That's Susan Matthews. She's the news director at "Slate" and the host of this season of the podcast “Slow Burn,” which explores the path to "Roe" and how abortion became the contentious and politicized issue that it is today. The first episode of the season is all about Shirley Wheeler. She died in 2013.
Matthews: One of the things that you hear today is that if "Roe" is overturned, if abortion laws are put into place, the woman isn't going to be punished. So, one of the things that I thought was really interesting about Shirley's story is that it just kind of shows that you can't guarantee that.
Basu, Narrating: Now that the Supreme Court has handed down this major ruling overturning abortion rights at the federal level, Susan says we're already starting to see states pick their own battles about how to protect or penalize people who want abortions. And it's more important than ever to understand who Shirley Wheeler was and why she sought the medical care that she did.
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Matthews: So, one of the things that I found out about Shirley when I did start researching her is that her early life was really tough. Her mother died when she was about a year old and her father was an alcoholic and she was the youngest of several, I think eight, children. And so, she grew up in North Carolina and she was kind of out of sorts, like she didn't really have a strong family life and she was living with her siblings and kind of going back and forth. The additional thing that I learned about her that was quite tragic is that she was raped when she was 18 years old, and that was in 1966. She got pregnant, and in 1966 if you were 18 years old and you were alone and you were poor as Shirley was, like, accessing an abortion, never mind a safe abortion, was almost impossible. So, she went through with that pregnancy and she gave her child to her brother to raise. She left North Carolina at that point, which I think had been a place of a lot of painful memories for her. And I think that another thing that I think is really important to this story is that Shirley had this child when she was 18 years old and it caused health problems for her for the rest of her life, and so she knew after that that her doctor had told her that another pregnancy would be really dangerous for her, and that even birth control her hormonal birth control at the time would also pose a risk.
Basu: Mm. So, at this point, Shirley leaves North Carolina, she goes to Florida, and she meets a man and establishes what sounds like a really nice and happy relationship.
Matthews: Yes. [CHUCKLES]
Matthews: Yes, so she met Robert Wheeler, who we got to talk to. They started dating, they moved in together, they lived in a house by the beach, he was a surfer, they had a bunch of pets. My favorite detail about their relationship is that one of the pets that they had was a raccoon. They kept a raccoon and Robert built out their porch so that the animals could, like, stay in their porch on the second floor of this house that they lived in. And they were, like, really just living in the early seventies, like loved The Beach Boys, loved going to the beach. They had this really nice life together before all of this happened.
Basu: Yeah, so what happened, knowing that she had all these health complications the first time that she got pregnant? You detail what happened the second time she got pregnant.
Matthews: Our understanding of what happened is that Shirley not only knew that she had these health problems, but she also knew that she didn't wanna be a mother. She talked about that quite a bit. She talked about her worries about bringing a child into the world. I think that it stemmed a bit from her experience with poverty. You know, those were all really real factors for her. So she knew when she got pregnant that she was going to get an abortion. We talked to Robert about that and he kind of said, It was her choice, I supported her. And it was not a choice that she struggled with.
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Robert Wheeler: She told me that the doctor recommended never to have a child again. So that was a big part of her life, is that she knew that she could have problems with her health if she had gone ahead and gone full-term.
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Matthews: The thing that she struggled with was accessing the abortion, because it was 1970. And while laws were starting to change in other states around that time, in Florida abortion was illegal, and so what women would do was they would basically ask people that they knew, and there were kind of these whisper networks that would connect women to the people who would give them an abortion. But it seems like, and all of our understanding is that, it was pretty jarring as an experience. Like, she lived in Daytona Beach, Florida, and she had to go to Jacksonville, a couple hours away, to have this procedure. And so she did that the first time and it worked. It was-- It was quite expensive. I think it was $400, which is $3,000 in today's money, so it was a pretty expensive procedure to get, but the first time it worked, it happened. There weren't medical complications or other complications.
Basu: And what happened the third time that she gets pregnant?
Matthews: Yeah, so she knows again that she wants to get an abortion. She knows that she has to. She thinks that she knows how to and so she goes to Jacksonville again, she has this procedure. What the procedure was is a doctor would insert kind of a rubber catheter into the woman's uterus which would actually hit against the cervix and it would prompt a miscarriage, but sometimes it wouldn't work. And so that's what happened with Shirley the second time is that she went in for the procedure, assuming that it would work the same way, and it didn't. She said that she walked around with this catheter in for a month waiting for the miscarriage to be triggered and it never happened. And so she had to go back and she did go back and they performed the procedure again, and that time it did work. But she was further along in her pregnancy at that point, and that's when she experiences this bleeding that she obviously regarded as pretty scary and she went to the hospital to get help. In general doctors would not perform abortions, but women would often go to hospitals after they had received abortions and doctors would help them at that point. They would always say, We can't trigger the abortion, but we can provide care after you've received one.
Basu: Oh, my God. Oh, wow.
Basu: If they've had a complication or something, if they're bleeding, that kind of thing.
Matthews: Yeah, exactly. And she was helped in the hospital. The procedure was finished and she was sent home. My understanding is that the hospital was not involved in reporting her case to the police at all. It's not exactly known how the police found out that she had been to the hospital, that she had had been through this experience. And they showed up at her door and they asked her who had given her the abortion. This is the part where I really wish Shirley was still alive because this is the question that I've had for such a long time.
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Basu, Narrating: The question that Susan hasn't been able to figure out is whether Shirley genuinely didn't know the name of the person who gave her the abortion, or whether she just didn't want to say to protect them, because at the time it was mostly the doctors who were at risk of being penalized, rather than the women.
Matthews: They would take all these precautions so that the women would sometimes not even know the name of the doctor or where the doctor practiced or, like, where this happened. So what they would do was you would get the details of, Okay, I have to be in this place, on this street corner, at this time, waiting for someone to pick me up. And the women would be blindfolded before they would get into a car, they would be driven around to be disoriented, they would be taken to wherever they received the procedure, were blindfolded the whole time, and when it was over, they would be returned somewhere and they would not even know what exactly had happened to them and who had performed this procedure on them.
Basu, Narrating: But Shirley most likely had some information.
Matthews: She at least knew how she had connected with the person who gave her the abortion. So, I think that it's fair to say that Shirley was pretty remarkable in the fact that she wouldn't tell the cops who had done this. She refused to help them.
Basu, Narrating: And because she refused to help, Shirley faced the consequences alone.
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Matthews: The cops arrest her and bring her to jail for four days, trying to get her to tell. And my understanding of what they were trying to do-- because one person that I got to speak with was Horace Smith, who was the prosecutor at the time, and I asked him why they did this. And the story that he told me was that, in this period in the spring of 1970, the cops had been faced with this situation where a few women had died of illegal abortions in Daytona Beach.
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Horace Smith: There had been at least one other death in the area and I think there had been some other young ladies who had been hospitalized because of illegal and improper abortions.
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Matthews: And so what they were trying to do was to find the person who was performing these abortions, because they wanted to stop that person. And I think that that is another really interesting question about this period and what was happening then because women-- what we know about this time is that women would get abortions regardless of how safe they were, of how legal they were, of what was going to happen to them. And so I think that there's something that is very male about this approach to say, These illegal abortions are happening and they're unsafe so we must stop them, whereas the women who are faced with this conundrum said, These illegal abortions are happening and they're unsafe, so we must legalize the procedure. So I think that that's just those two perspectives, like what you do in response to this information, is interesting. What the cops did and what Horace Smith did was they charged Shirley with manslaughter for getting an abortion, and that was really, really rare.
Basu: So, take us to the trial. This is now 1971, right?
Matthews: Yes.
Matthews: Right. So, in part because of how traumatic the experience of going to jail was for Shirley and because of her health problems, the trial is delayed for about a year. And she knows that she's facing 20 years in prison if she's convicted, and that would be the highest sentence. So, ultimately, she's represented by a public defender, it's a jury trial, there are three men and three women, and the main thing that is being discussed in the trial is how far along Shirley was in this pregnancy. And the opposition, the prosecutor, Horace Smith, is arguing that the abortion happened so late that it's not an abortion, that it's manslaughter. That this was not a fetus, that it was a baby.
Basu: Oh, wow.
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Basu, Narrating: The jury ultimately decides Shirley is guilty. Her conviction was largely based on this disputed claim about how far she was into her pregnancy. The prosecutor, Horace Smith, argued that Shirley was so far along that she would've felt her fetus move. He used a now-outdated term in maternal care, describing the first moment of fetal movement as "the quickening."
Matthews: And one of the things that Horace Smith said is that if it was before quickening, it would not be a manslaughter charge, it would be abortion. But because he was convinced that quickening had happened, he thought that it was a life and he thought that he could charge her with manslaughter in this way.
Basu: Fetal movement typically happens anywhere between 16 to 24 weeks into a pregnancy. Shirley claimed she never felt her fetus move. Shirley's trial caught the attention of a "Miami Herald" reporter, Molly Sinclair, who wrote for the women's section of the newspaper at the time. Molly understood that this point about fetal movement played a big role in the verdict, so she decided to do her own investigating.
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Molly Sinclair: It occurred to me that if there was a death certificate for the fetus, which the state had prepared, maybe it would have the weight. So, I specifically talked to the police about the death certificate, which was actually sealed, it wasn't supposed to be public, and I remember the guy said, Oh, well, you can get that from so-and-so at such-and-such a number. And to my surprise, the woman answering the phone, who had the death certificate, told me it was 14 ounces.
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Basu, Narrating: Based on that weight, Shirley was likely around 20 weeks along, before the point of fetal viability. This information should have strengthened Shirley's case, and she even tried to get a new trial, but the judge turned her down and said the manslaughter conviction would stand. That conviction carried a potential 20-year sentence, but instead…
Matthews: The judge, in October, comes down with the sentence, and it's that sentence that I found to be just so fascinating. He does not give her jail time, but he does give her two years of probation, and the terms of that probation are that she either has to get married or she has to go home to North Carolina.
Basu, Narrating: That was the sentence. She either needed to marry her boyfriend, Robert Wheeler, or leave the state of Florida. One thing to know about Shirley's life in North Carolina: she'd been married once before. It hadn't worked out, but she never officially got divorced.
Matthews: I think that if she had really wanted to marry Robert Wheeler, she could have resolved that. I just also suspect that the judge knew that, was not a fan of the fact that she had left and was living with another man. I think that there was just a little bit of, you know, classic patriarchal disdain for that situation that informed her sentence.
Basu, Narrating: Shirley was 23 years old at this point, and this choice she was being forced to make, to get married or go home, made a lot of people pay attention.
Matthews: And it's that sentence that I think really makes her story explode, and it makes women all over kind of perk up and think about the court system and how it's treating them and the fact that they could get in trouble like this for doing something that, you know, hundreds of thousands of women were doing every year even though it was illegal.
Basu, Narrating: So Shirley decides she is not getting married again.
Matthews: I think that, for Shirley, she didn't think that that was a solution to her problem. And some of the quotes that we have from her that she gave the newspaper say that she doesn't want to have children, that-- She had really strong beliefs about what she wanted for her life, and she didn't want to get married because she was told by the court that she had to. Like, she had already had a marriage that had been kind of a rash decision. It hadn't worked out. She knew for herself that she didn't want to do that again, and so she goes home to North Carolina where she had never really considered it home, she had never really had a very good life. And one of the things that was so heartbreaking from looking through the newspaper coverage from this time were reports from North Carolina where they were writing newspaper articles about the fact that she had come home, and she says in one of them that her own father hadn't come to visit her, to say hi to her. She moves back in with her brother. And so it's returning to this place of trauma and to all of this issue with her family, and it's clear from what Shirley said in this period that she really struggled with that, but that she thought that that was the right choice for her.
Basu: So, how does Shirley's story and all the publicity around it and all the coverage around it end up shifting the abortion conversation in America?
Matthews: There are a few things that Shirley herself does. So, this organization called WONAAC, which doesn't exist anymore but it's the Women's National Abortion Action Coalition, is like an umbrella organization that's trying to pull together all these women lib groups to really say, We're really focused on abortion and this is what we're going to do. And so, in that same fall of 1971, that group has their very first rallies that are rallies explicitly about overturning abortion laws, and they invite Shirley Wheeler. And it's the first rally that she has ever attended and she's there to give a speech, and that's actually the only audio that we were able to find from Shirley Wheeler. It's just so powerful to me to hear her voice giving this speech.
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Shirley Wheeler: The state of Florida is the criminal, not me. [CHUCKLES] I am appealing my conviction because I would hate to see another one of my sisters go through the living hell that I have. Thank you.
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[CROWD CHANTING "DEFEND SHIRLEY WHEELER"]
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Matthews: There are a couple things that I think are really important about the fact that she can do this, and one is that so many of the women that they're talking about, so many of the worst stories about illegal abortion at this point, they end with the woman dying. There are a lot of women who get a legal abortions who survive and they do talk about them, but the worst effects, there isn't a spokesperson who comes afterwards who can say, This is why this is so important. And I think that for Shirley, her story is so outrageous, the sentence that she gets, that "get married or go home," it's so jarring to women that, when they hear her story, they realize what's at stake. And so I think that that's one of the things that's really important. And then the other thing is that, in this period, this is happening in the fall of 1971, "Roe v. Wade" is heard in front of the Supreme Court for the very first time in December of 1971. So that case has already been argued in Texas, it's already made its way all the way to the Supreme Court. But at that moment, nobody knows who Jane Roe is. She's totally anonymous, and so her story isn't a story that's being told in the press, and Shirley's is. And when they talk about her story, there's a photo of Shirley holding one of her pets. Like, she's very relatable. People realize that this could be them when they hear what happened to Shirley and when they see her talk and when she's out front-and-center making this case.
Basu: Yeah. You know, it is hard to listen to Shirley Wheeler's story and not think about what's happening today. All of those warnings, right, that Wheeler should be the first and last woman to be prosecuted for seeking abortion, that was something that was said a lot at that time, right? Recently, we've seen a woman in Texas charged with murder after she allegedly had a self-induced abortion. Those charges were later dropped. In California, two women were charged with murder after having stillbirths. They allegedly took methamphetamines while they were pregnant. What appears to be on the table today in terms of prosecuting women?
Matthews: Yeah, I think that all of those stories that you just listed are examples of these things that happen that really show that this argument that it's not the woman who will be held responsible is just a lie, it's not true. So the issue is that, once you start to assign rights to a fetus, the way in which a pregnant woman can be criminalized for having a miscarriage, it just opens the door to so many situations in which the woman's body is no longer her own. And I think that one of the things that I've been thinking about, particularly with that case out of Texas, that was a case that happened and it kind of blew up and it got all this national media attention, and then when all this scrutiny is placed on it, it kind of got resolved. And it seemed like a very complicated situation, to be totally honest. To me, when I looked at that, it reminded me of Shirley too, because Shirley had this experience in 1970 and she waited for a year for her trial, and it wasn't until the sentencing that the national media had really started to take notice of what happened. And it's that scrutiny, and that outside attention, that I think really did change things for Shirley.
Basu, Narrating: In 1972, Florida's Supreme Court struck down the state's abortion law. Shirley's lawyer at the time filed a motion for her conviction to be reversed. The motion was granted and Shirley's sentence was vacated, but Susan says that Shirley's story should serve as a cautionary tale for a post-"Roe" world…
Matthews: And so the thing that worries me is that when this starts to become routine, the women who experience this, that national scrutiny might not be as important anymore. We might get used to the fact that this happens. And so I think that it's pointing us to a really dark future, and I think that what Shirley experienced … And when you, when you think about the fact that she couldn't continue with the pregnancy for her own health and she didn't have an option, and this is why she did that, and then she went through all of this because she wouldn't give up the person who had helped her, I just think that it is really an example of how this happens and why it's so important to protect these rights.
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Basu: Susan, thank you so much. Looking forward to hearing the rest of the season.
Matthews: Thank you so much for having me.
Basu, Narrating: You can listen to season seven of “Slow Burn,” hosted by Susan Matthews, on Apple Podcasts. You can find a link on our show notes page.
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