'San Francisco Nine': the case that prompted California’s expansion of abortion laws

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(KRON) — In June 1966, three pregnant women were scheduled to receive routine abortions at San Francisco hospitals. 

Each woman had contracted rubella, or German measles, early in their pregnancy, and each was fearful of the potential birth defects that could result from their infection. Rubella was known to greatly increase the risk that a baby would be born with severe birth defects, with some doctors saying there could be up to an 80% risk of these defects.

Abortions for this reason had been regularly performed by San Francisco hospitals for years and had “the sanction of medical practitioners,” according to a 1966 Los Angeles Times article. Though technically illegal under California’s hundred-year-old abortion law that allowed therapeutic abortions only to save the life of the mother, many doctors would provide abortions in rubella cases, rationalizing it as protecting the health of the mother.

But suddenly, each of these three women received an unexpected phone call from their doctor. The hospital will not allow us to go through with the abortions, the doctors said.

“The law is the law”

Hospitals across California had started cracking down on what abortions they would allow their doctors to perform after the State Board of Medical Examiners filed a case against San Francisco obstetricians Dr. John Paul Shively, chief of obstetrics at St. Luke’s Hospital, and Dr. Seymour Smith, who worked at St. Francis Memorial Hospital, for performing abortions for women who had rubella early in their pregnancy. 

The doctors faced unprofessional conduct charges by the board and the potential suspension of their medical licenses. Their hearings were set for late July. 

The case was prompted by board member Dr. James V. McNulty, who felt that the board was “guilty of malfeasance” for not preventing therapeutic abortions that did not meet the requirements of state law, he told The New York Times in 1967. 

“I was just interested from a legal standpoint because these doctors were saying they were above the law,” McNulty continued. “Even though I’m a Catholic — they always point that out — the law is the law.”

Doctors rally in support of accused

Doctors from across the country spoke out in support of the accused doctors. A group of medical, legal and religious representatives established the California Committee on Therapeutic Abortion, a fund to help provide defense to the doctors, on June 15, 1966. 

At a news conference of the committee, its president Dr. Keith P. Russell explained that it was established to inform the public of “archaic abortion statues which prevent proper medical care of women,” according to a June 16, 1966 Los Angeles Times article

Dr. Edmund Overstreet, vice chairman of obstetrics and gynecology at UC San Francisco, announced at the conference that he had coordinated 33 Bay Area obstetricians who made similar decisions to perform abortions to testify. 

He criticized the filing of the case against Smith and Shively because it made it more difficult for women to obtain therapeutic abortions as lawyers began advising hospitals to become more strict in their oversight, Overstreet said at the news conference. 

“Women, mostly married women, are being turned over to back alley butchers,” Overstreet said. 

California law also did not allow abortion in cases of rape, which caused concern for many doctors. 

“The law punishes the rapist and then punishes the victim,” Overstreet continued. “This is the type of thing we’re trying to get corrected.”

In June, the State Board of Medical Examiners named seven additional doctors who would have to face board hearings for performing illegal abortions. 

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From the medical board to the courts

As Shively and Smith prepared their defense, the medical board would not allow them to review the evidence gathered against them. The pair subpoenaed the medical board to request “prehearing depositions and production of documents,” according to the court’s December 1966 opinion, but the hearing officer refused to sign the subpoenas. 

On June 30, the doctors filed a petition for a writ of mandate in the superior court, but their petition was denied. The doctors then filed for a writ of mandate and restraining order with the California Supreme Court, which was granted. The Court put the administrative hearings on hold until the case of whether the doctors could view evidence gathered against them could be heard.

On Dec. 1, 1966, lawyers and UC Berkeley law professors Zad Leavy and Herma Hill Kay filed an amici curiae brief signed by 174 doctors from around the country, including nine deans of medical schools, on behalf of Shively and Smith. 

The brief described how the abortions took place “in licensed hospitals under aseptic conditions” and that “concurring opinions” had been obtained from other doctors. The abortions were all approved  by the hospitals’ therapeutic abortion committees, which followed the legal abortion regulations of the time. 

“Nothing was done by petitioners or others persons to keep these abortions secret,” the brief read.

The brief emphasized that the women who received abortions after contracting rubella were married, and that in each case both the husband and wife were “fully advised” of the medical implications. It also argued that the doctors should be allowed to examine the evidence the medical board had against them to “properly prepare their defense.”

In its deliberation in December 1966, the Supreme Court of California did not consider the question of whether these abortions were legally justified. It did, however, rule that the doctors should be permitted to view the evidence against them in disciplinary matters in a unanimous opinion written by Chief Justice Roger J. Traynor.

This decision would have “a broad impact on ‘discovery’ proceedings before disciplinary hearings” in state medical license reviews, the Los Angeles Times reported.

Legislature faces the abortion question

When discussions of liberalizing California abortion laws took off in late 1966, the case of the San Francisco Nine was largely credited as being an impetus. The case rallied together groups and doctors in favor of reforming abortion law. 

In 1967, the California state legislature was set to consider the Beilenson bill, which would expand the reasons for which abortion would be legal to include if the pregnancy would impair the physical or mental health of the mother, if the child would likely be born with grave physical or mental defects or in cases of rape or incest. 

With a court decision reached, the medical board could proceed with its disciplinary hearings. But by March, new dates had yet to be set. McNulty had resigned from the medical review board in February 1967. The future of the disciplinary hearings was uncertain as the legislature considered reforming the law. 

“If the [Beilenson] bill is passed,” McNulty told The New York Times, “the board would look rather foolish trying to punish the doctors.” 

A group of San Francisco-based doctors and lawyers launched the Citizens Defense Fund on Therapeutic Abortion in support of the nine doctors in March 1967. The committee, made up of 48 members, aimed to raise $20,000 for the defense of the doctors, and it garnered public support from doctors, lawyers, judges and Protestant and Jewish religious leaders. 

The California legislature passed liberalized abortion regulations in June, with slight modifications at the request of Gov. Ronald Regan to remove exceptions in the case of a chance of mental or physical disabilities of the baby. 

Disciplinary hearings resume, nearly two years later

Because the final law specifically outlawed abortion in cases where the fetus had the potential of being born with abnormalities, the state medical board decided to proceed in the disciplinary hearings. 

Shively defended his decision to provide the abortion to rubella patients at his Jan. 22 hearing. 

“Anything done in these instances I would want done to my wife or daughter,” Shively testified. “It would be only correct medical practice.”

Shively argued that having a deformed baby would have negative impacts on the woman and her family. 

“Never in my wildest imagination was there any intent to break the law,” Shively said. He performed the surgery because it “involved the life and health of the woman.”

One of Shively’s patients, a woman who had one daughter with disabilities and feared not being able to handle another after coming down with rubella early in her second pregnancy, testified to the board. 

“I had to have an abortion,” she said at the hearing. “I can’t give my daughter all she needs, and I just couldn’t have handled two. This was the only way.”

At his trial, Smith defended the abortions he performed as “perfectly legal.”

“I felt it was done to save the life of the mother,” Smith said at his hearing. 

After consideration, the board publicly reprimanded both Shively and Smith. Smith was not suspended, as the board found the abortion he performed had been legal, but he was reprimanded for providing advice on illegal abortions. 

Because he performed illegal abortions, Shively was placed on one year of probation, and his medical license had the potential to be suspended for 90 days following the end of his probation if he broke the law. 

Shively appealed the board’s decision, and a Superior Court judge reversed the ruling in August 1968 on the basis that refusing an abortion to a woman with high chances of a deformed birth is denying her constitutional rights. 

California Attorney General Gerrold F. Carreras, who prosecuted the case, expressed “shock” about the court’s decision, according to the Los Angeles Times, and told the newspaper that he would continue with its trial of another of the nine original doctors named. 

But, he said, “it seems rather futile.”

By October, the board had found all seven remaining doctors guilty of performing or helping to perform illegal abortions. 

But it punished the doctors “lightly,” the Los Angeles Times reported. The men were placed on one-year probations, and their licenses would be suspended for 90 days if they broke the law during their probationary period. 

It would take several more years before the right to abortion was expanded again, first with the Supreme Court’s 1973 decision in Roe v. Wade that established a constitutional right to abortion, and again in a 1981 California Supreme Court Case that found that a 1972 amendment protecting the right to privacy in the state constitution included the right to make decisions about procreation. 

Now, 55 years after the case of the “San Francisco Nine” helped prompt the liberalization of California’s abortion laws and in the wake of the Supreme Court overturning Roe v. Wade, the state has committed to continue expanding protections for abortion in the state, for residents and non-residents alike.

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