What would a ban on abortion in Arizona look like? A century of prosecutions, deaths before Roe sheds light

Ray Stern
Arizona Republic

The last person prosecuted for providing an abortion in Arizona was a chiropractor named J. Norman Wahlrab.

In the fall of 1970, a 23-year-old woman accused him of injuring her during a $500 abortion in his Seventh Avenue office, an Arizona Republic article from the era states.

He gave her $200 back and sent her to the hospital after she began hemorrhaging severely.

He was fighting his conviction and a 2-to-4 year prison sentence until the announcement of an Arizona Court of Appeals opinion that came April 24, 1973, four months after the landmark Roe v. Wade decision.

"Although we disagree with the Wade opinion we are bound by the U.S. Supreme Court decision," then-Presiding Judge William Eubank wrote. "We therefore hold that appellant’s conviction and sentence under our statute cannot stand."

Wahlrab died in Tempe in 1996, at the age of 72.

Despite opposition from state leaders at the time, Roe v. Wade brought an end to enforcement of what is now a 158-year-old Arizona statute banning abortion services.

But the law is still on the books and its revival — and enforcement — could happen again if the U.S. Supreme Court cancels the 1973 protections, as a leaked draft opinion suggests is imminent.

Whether its enforcement definitely would occur is unclear. Gov. Doug Ducey said a law passed this year that bans abortions after 15 weeks of pregnancy would take precedence. Others, including the sponsor of the new law, Sen. Nancy Barto, R-Phoenix, disagree, pointing out that it contains language that attempts to keep the old provisions in place.

Without the protections of Roe v. Wade, abortion was — and may be yet again — a risky business for the women undergoing the procedure and the men and women who perform it.

Arizona's abortion ban didn't stop them from happening during the roughly 100 years it was enforced. News accounts from the time instead show the law stopped many abortions from being safe.

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Two systems of care for women

The "back-alley" abortion was usually performed in an instrument-filled room inside someone's home or office. Sometimes women seeking an abortion died of peritonitis, a serious condition caused by accidental perforation of an intestine, or other causes. A patient's death or hospitalization could trigger prosecution of the abortion practitioner, who faced mandatory prison if convicted.

But enforcement and application of the ban was unequal.

Physicians performed abortions selectively in hospital settings in Arizona in some circumstances. The law provided an exception if the abortion was necessary to save the mother's life, a provision that could include the effect on a woman's mental health if she didn't receive one.

At Arizona hospitals, committees of typically male doctors reviewed requests for abortions and decided which to act on. The head of one such committee for the Tucson Medical Center said during a presentation in 1968, according to a Tucson Daily Citizen article, that out of 30 requests considered in the past year, six were granted.

People with lesser means had the option of choosing potentially life-threatening procedures performed in Mexico or by a local physician willing to take the risk for nominal fee.

Abortion also was illegal in Mexico. At least two articles in Tucson newspapers from the 1960s detail University of Arizona students who were held briefly by Mexican authorities for attempting to obtain abortions.

After then-Gov. Ronald Reagan signed a law legalizing abortion in California in 1967, many Arizona women took a trip to the neighboring state, sometimes with the help of Planned Parenthood. The late Ruth Green, former executive director for the group's Tucson chapter, testified in a court challenge to Arizona's law in 1971 that patients referred to California clinics "are treated as numbers, not persons, and undergo surgery in assembly line fashion which leaves the woman frightened and degraded by the experience."

A total ban on abortions now could mean a return to clinics in California crowded with Arizona women. The Guttmacher Institute predicts that California, with its liberal abortion laws, would serve as a sanctuary for thousands of women seeking abortions, and most of those women would be from Arizona.

Now, as in the past, such trips cost more than some women can pay. Before Roe v. Wade, many of those women found a local provider, despite the safety risk.

"They find a back-alley setting and (risk) their lives by having abortions performed by the untrained, unclean and untrustworthy who operate outside the Arizona law," Green told the court.

Providers prosecuted, women spared

The Howell Code of laws compiled in 1864, a year after Congress created the Arizona territory, includes a provision stating that anyone who provides or helps to provide drugs or "any instruments whatever, with the intention to procure the miscarriage of any woman then being with child" shall be punished with 2-to-5 years in prison. The law provides an exception if a doctor believes the abortion is necessary to save the mother's life.

The language of Arizona's first abortion ban lives on in streamlined form as Arizona Revised Statute 13-3603.

By the time of an 1887 revision of the territory's laws, another law was added that mandates a 1-to-5 year sentence for a woman who receives or solicits to receive an abortion. That part was repealed in 2021 as part of a law that bans abortions sought when the fetus has a "genetic abnormality."

There were no apparent cases of women prosecuted for receiving an abortion in a review of news articles from past decades, but authorities routinely went after Arizonans for providing them.

The prosecutions of at least 12 abortion providers — eight men and four women — made headlines in major Arizona newspapers from the time of the ban's passage until Roe v. Wade.

Besides the Wahlrab case, Maricopa County prosecutors targeted two other men in high-profile cases from the 1960s, neither of whom received prison time.

Charles Keever, Youngtown physician, successfully appealed two convictions for providing abortions.

Youngtown Dr. Charles Keever was prosecuted for two abortions he performed in 1967, including one in which a patient died. He was convicted twice for abortions, but appealed both cases successfully.

In 1963, the prosecution of Fred Freedman began when a 20-year-old woman "panicked when she learned that she was pregnant, because she believed this would prevent her starting a new job as an airline hostess," an Arizona Republic article stated. A former nurse who went to prison for tax evasion, Freedman received $150 to perform the operation in his home on San Juan Avenue.

After complications sent the woman to the hospital, police arrested Freedman as he drove up to his home with a "20-year-old pregnant California girl" in his car. Police found "a crude operation table and surgical instruments" in his home. They also found a receipt book with the names of more than 100 clients, including housewives and a college professor. The 69-year-old suspect boasted he'd performed abortions for "50 years," the article states.

Freedman was convicted seven months later. A judge suspended his five-year prison sentence due to his age and "ill health," then ordered Freedman to "leave Arizona and never return."

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Desperation and danger

In just four of the 12 cases reviewed by The Republic, the providers were licensed physicians at the time of their arrest.

The most prolific, or at least the one who bore the most prosecution attempts, was Dr. Nathaniel Hightower, who had a small office near 9th and Jefferson streets.

He was charged three times in the 1940s with the crime, newspaper articles from the era show, including cases in which two women died of infection. Two of those charges were later dropped, but he was convicted in one of the cases and sentenced to 2-to-5 years in 1945. He was released after 15 months on an early parole and stripped of his license to practice medicine.

Authorities tried to prosecute him twice more, in 1953 and 1956. His last reported violation came from assisting a 20-year-old mother who asked him to perform an abortion because she was fearful of having another baby because of "difficulties" with her last two, according police information in an Arizona Republic article. She was to pay $20 down and $5 month toward the total price of $75, the woman later told police, "but Hightower went ahead when she told him she had no cash but would pay in the future."

Her doctor reported Hightower after she developed a "severe infection and appeared to have been given an incomplete abortion," the article states.

Dr. Hightower was acquitted in both of the 1950s cases when the prosecution could not prove the woman allegedly receiving the abortions were pregnant, follow-up articles in each case reported.

The articles paint an incomplete portrait of the doctor, who had a positive influence on his family, said his grandson, a longtime Maricopa County probation officer and former Isaac Elementary School District Governing Board member who shares the same name as his grandfather.

The elder Hightower, born in 1893, was educated at Howard University and was fluent in at least seven languages, he said. Hightower worked mines in Mexico in that country's revolutionary era before setting up a practice as a physician in 1920, his grandson said. People knew him as a "brilliant" man who would deliver babies for tamales, or dinner.

Hightower has heard stories passed down over the decades about his grandfather's illicit abortion practice.

The one that always stood out to him was about a young girl who showed up at his father's office, "frightened to death" that her family would "kill her or disown her" over her pregnancy, and claiming she was prepared to perform an abortion on herself with a coat hanger, he said. He emphasized the desperation of some of his grandfather's patients.

"You've got to have some outlet or some safe way to do that," he said of abortions. "People put their lives in jeopardy."

Another man, Japanese doctor Hiroshi Ben Inouye, was taken from the Poston Internment Camp in 1942 to stand trial for the death of a "young Phoenix Caucasian woman" during an illegal abortion. He received a 3-to-5 year sentence and was released at the end of the war.

Superior Dr. H.T. Boozer lost his appeal in December 1955 to avoid prison.

The state Supreme Court opinion in Boozer's appeal states that the woman who received the abortion and her husband sought out the doctor, who was known to perform the procedures, "to avoid the shame and disgrace of a pregnancy incurred prior to marriage and also for financial reasons."

Dr. Scott Helm was a prominent Phoenix physician who stood trial on abortion charges in 1891.

In the late 19th century, Phoenicians packed the Maricopa County courthouse every day for the trial of Dr. Scott Helm, a prominent Arizona physician.

Helm was arrested in 1891 and put on trial for murder after a woman, Alice White, died from an alleged abortion. "Doc Helm" was reportedly experienced in the illegal procedure.

Helm's attorney and a local icemaker later had a gunfight in downtown Phoenix over the case, but no one was injured. 

A jury acquitted Helm, who later died in a horse-riding accident.

U.S. Politics: Arizona senators vote for abortion bill, but measure fails to pass

Untrained providers filled gaps

Most of the 12 providers whose cases were reviewed for this article were not physicians.

Mary Ramirez of Tucson got caught in 1955 after police began investigating an alleged "abortion ring." She confessed she'd done many abortions in her home on South Main Avenue, including for some women three or four times each — despite a lack of medical training.

She made only $5 per surgery, her defense attorney, Edward Aboud, told the court before she was sentenced to four years of probation.

"She didn't do this for gain," Aboud said, a newspaper account says. "She did it from pity for these women, and out of ignorance."

Mary Ramirez, a Tucson housewife, was convicted in 1955 of providing an abortion in her home.

Six years earlier, Tucson resident Estella Estrada drew a five-year suspended sentence for performing abortions. A prosecutor claimed in trial that she had charged "about $50 to Mexican women and about $100 to white women," a Tucson Daily Citizen article states.

The judge told her he would not be able to "enjoy the next two weeks if I sent you to Florence (prison)."

Newspaper accounts also relate how Billie Kinsey of Superior walked out of prison in April 1940 after serving four years of a 20-30 year sentence for second-degree murder following an abortion she performed that resulted in a death.

Julia Bryant was a "madam" in Globe sentenced to four years for performing an abortion in 1949 after a previous conviction in 1935, according to the 2012 book "Pregnancy, Motherhood, and Choice in Twentieth-Century Arizona" by Mary Melcher.

"Sadly, Bryant died in prison in Florence at the age of 59, of hypertension," Melcher wrote.

Another non-physician arrested for practicing abortions in Arizona was Duane Benson, a Phoenix masseur who was arrested in 1937. Police found a "considerable paraphernalia" related to his illicit work in his home on West Holly Street, an Arizona Republic article states. But his criminal charge for performing an abortion was dismissed in 1937 after the patient left the state.

Legal threat forced abortion abroad

May 2, 2022; Washington, DC, USA; Pro-choice and anti-abortion activist rally outside of the U.S. Supreme Court in the evening on May 2, 2022. A draft Supreme Court opinion published by Politico on Monday suggested the court is considering a decision that would overturn the landmark 1973 Roe v. Wade decision that established a constitutional right to abortion

Sherri Finkbine, known for the most famous case involving Arizona's anti-abortion law, isn't a real person, said her daughter, Scottsdale resident Kristin Atwell Ford.

The news media misidentified the Romper Room TV show host by using her husband's last name after her quest for a safe abortion made headlines around the world in 1962. But she's always been Sherri Chessen, her daughter said.

Chessen's story, featured in the 1992 movie "A Private Matter," starring Sissy Spacek, shows harsh realities of a total abortion ban that some now want to bring back to Arizona. Faced with the likely prospect she would have a severely deformed baby because of her accidental use of thalidomide, Chessen had to leave the country for an abortion when local doctors were warned they'd face prosecution for helping her.

At the same time some Arizona women were seeking back-room abortions from people like Wahlrab or Freedman, Chessen's physician presented her case to his peers and administrators at Good Samaritan hospital, who voted to allow an abortion. Then came the complication: Before the scheduled surgery, Chessen gave an interview to The Arizona Republic about her situation in hopes of warning other women to avoid thalidomide. The resulting July 23, 1962, article, was a worldwide sensation that exposed the consequences of Arizona's ban.

Maricopa County Attorney Charles Ronan publicly declared that since the only legal exception to the abortion law was to save a mother's life, he would have no choice but to prosecute anyone who performed the service. Good Samaritan canceled the surgery.

The hospital filed a lawsuit against the state that included the family's name, which news outlets soon published. Opinions about Arizona's law, abortion and what Chessen should do were suddenly everyone's business.

Sherri Chessen's abortion became an international news story in 1962.

Chessen was fired from Romper Room. Hate mail poured in. A judge dismissed the lawsuit, leaving Chessen with no safe, legal options in the United States. A Swedish newspaper paid for her flight to Sweden, where she obtained an abortion. Her fetus was severely deformed, as expected.

Chessen's now 90 and did not want to give an interview. She gave a lengthy interview to The Republic as recently as 2016, but talking about the issue upsets her too much now, Atwell said.

Atwell views her mom's abortion story as a "landmark, watershed moment for women's reproductive health."

An award-winning documentary producer, she's currently preparing a documentary on Chessen. She views anti-abortion laws as an authoritarian way of "controlling women and limiting their reach in their own country."

Atwell doesn't expect the project to "change minds." But for people who believe abortion is a woman's right, it may "make them feel a little bit more comfortable and certain in standing up and saying so. Long story short, there's no way we can go back," she said.

Arizona could go back, to an extent, if a reversal of Roe v. Wade reactivates the state's territorial law. 

It wouldn't be a complete return. Arizona women likely could perform abortions themselves with drugs arriving by mail, despite a 2021 law — barred by Roe v. Wade — that bans importing them.

But state leaders like Barto, who made sure that new legislation would not repeal the old ban, are prepared to see how the 19th century law works in the 21st.

Reach the reporter at rstern@arizonarepublic.com or 480-276-3237. Follow him on Twitter @raystern.

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