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A Fateful Decision

Saturday, January 16, 2016
Like most people, Strafford resident Jack Beecham has made a few decisions that he’d prefer to take back, such as signing up for the Air Force during the Vietnam War. But he has no regrets about standing up for women’s rights more than four decades ago, a gutsy move on a politically-charged issue that could have gone badly for him.

A year before the U.S. Supreme Court’s Roe v. Wade decision, Beecham, who is a retired gynecological oncologist at Dartmouth-Hitchock, changed history by stepping into the fray over women’s reproductive rights, helping overturn an 1846 Vermont abortion law and establishing a strong line of legal reasoning that could affect future efforts to restrict abortion nationwide.

For Beecham, a tall, fit-looking, white haired 73-year-old with a reserved manner, winning the case before the Vermont Supreme Court — decided 44 years ago this week — was a milestone event in his life, he said over a recent lunch in a South Royalton cafe, albeit one he doesn’t talk about too often. It also is an effort that had gone largely unrecognized until a couple of years ago.

It was December 1971. The only state where abortions were legal was New York, which had changed its laws a year earlier. Beecham was in his late 20s and a resident at the University of Vermont College of Medicine in Burlington. He had been moonlighting with women’s clinics in the area, not performing abortions, but helping mostly college students and financially strapped patients with other ailments when he was asked to be part of the case.

Under the Vermont statute, a woman was allowed to have an abortion without being punished, but unless the woman’s life was in danger, trained practitioners who performed the procedures were subject to as much as 20 years in jail.

Laura Twitchell, a well-known Vermont women’s rights advocate, and others had been lobbying for two years to have the law changed in the Legislature, a body that was staunchly divided by the abortion issue. The gulf between the sides was so wide that it became clear that the law was going to have to be changed by the courts and not the lawmakers.

To bring the case before the court, Twitchell, attorney Willis “Woody” Higgins and others had to have a patient and a “courageous” doctor.

Twitchell, who was the wife of a doctor, had been volunteering at the state’s Zero Population Growth organization, a non-profit group that advocates curbing population through education, contraception and defending women’s reproductive rights. She had been manning the organization hotline, an under-the-table service that quietly helped women in need seek funding for out-of-state abortions. She got a call from a pregnant, unmarried waitress who couldn’t afford to raise the child. Jacqueline R, as she was known in court records, agreed to be the patient who would challenge the law. Then Twitchell turned to Beecham, whom she knew from his work at the clinics.

“They needed a doctor, and with some trepidation, I said I’d talk with the patient. After that, I agreed to join the case.” Beecham said.

Jacqueline R. and Beecham sued the state in Chittenden County District Court in Burlington. Defending the case was a 22-year-old state’s attorney Patrick Leahy, an Irish Catholic and recent graduate from St. Michael’s College.

“I thought he’d be formidable, but to my surprise, he presented the state’s case rather dispassionately, like he was just doing his job,” Beecham said. (T he other defendant in the case was. like Leahy, a future U.S. senator; James Jeffords was then Vermont’s attorney general.)

In the case, Beecham argued that while Jacqueline R.’s life was not in danger, termination of her pregnancy was necessary to preserve her physical and mental health. He was willing to perform the procedure, except he would be prosecuted if he did. And because the patient was on welfare, she could not afford to travel outside the state to get a legal abortion. Her choices were to seek unskilled assistance, perform a self-induced abortion or have the child, according to court records.

Leahy essentially argued that the court didn’t have jurisdiction because the procedure hadn’t taken place. In addition, Jacqueline R. wouldn’t be prosecuted if she had the abortion, and Beecham wouldn’t face charges unless he violated the law. He could refuse to perform the abortion.

Abortion was such a charged issue that the testimony in the courtroom wasn’t the only factor in the initial ruling in the Vermont case.

Beecham’s attorney “Woody (Higgins) said he found out that as the judge was leaving his house that morning he made the ruling, his wife and daughter said ‘if you rule against them, don’t bother coming home tonight.’ That was secondhand and more than 40 years ago, so I can’t be sure that it’s true,” Beecham said. “The judge did render his opinion, and he did rule against us in favor of the state.”

But the judge later explained the decision to Higgins, and it played in the plaintiff’s favor.

“He called Woody into chambers after he rendered his decision, and he said that if he had ruled in our favor, the state of Vermont would appeal and drag it out until it was too late for the patient. If he’d ruled in their favor, he knew that we would appeal it to the state Supreme Court tomorrow,” Beecham said.

Within 24 hours, Higgins had the case, Beecham vs. Leahy, at the state Supreme Court, and because of the patient’s condition — she had to have the abortion before the fetus became viable — the court granted an expedited hearing.

The high court ruled in Beecham’s favor in a 5 to 2 decision on Jan. 14, 1972, that the law, while designed to protect the woman’s health, in fact put her in danger, leaving “her only to the recourse of attempts at self-abortion, uncounseled and unassisted by a doctor, in a situation where medical attention is imperative,” the decision says.

“This situation is subject to the charge of hypocrisy, where the right reserved in words is so circumscribed by the provisions of the statute as to amount to its withdrawal in fact, where is that concern for the health of a pregnant woman when she is denied the advice and assistance of a doctor.”

State Attorney General Jim Jeffords and Leahy sought a rehearing before the court, but that motion was denied by the same 5-2 vote a few weeks later.

After receiving financial help, Jacqueline R. had an abortion in New York in January.

The late Vermont Law School professor Cheryl Hanna coined a legal concept to describe the outcome of the Beecham decision. In a 2008 article for the Vermont Law Review, she called it the “Doctrine of Hyprocrisy.”

“While many legal scholars have argued that the failure of abortion statutes to hold women criminally liable amounts to hypocrisy, Beecham is unique in that it is the only case decided before Roe v. Wade to make such an argument. It also is the only decision to hold that by failing to criminalize women, the Legislature implicitly grants them the right to terminate a pregnancy,” Hanna wrote.

The ruling in Beecham “requires only that the law be reasonably related to its intended purpose and that the Legislature be honest about what that purpose is. If the purpose is to protect women, they must have safe access to abortion. If it is to accomplish something else, such as fetal protection, then women must be held liable for the consequences of their decisions.”

Hanna was writing in the wake of the U.S. Supreme Court’s 2007 ruling in Gonzales v. Carhart that upheld a ban on a late-term abortion procedure. The future of Roe v. Wade under the Roberts court was in question.

Laws that protect women from liability are much more popular and politically viable than those that punish them, Hanna noted. “Thus, if other courts insist on the criminalization of women to justify extreme restrictions or prohibitions on abortion, the demise of Roe may not be as punishing as it otherwise could be.”

After the Supreme Court arguments, the disposition of the case that bears his name didn’t weigh too heavily on Beecham, who was then a young man making his way in the world.

“I was a busy resident, on call every third night,” he said during the South Royalton lunch. “So, it wasn’t like I was hinging on the result because things take so long in the law.

“One afternoon, I was over in the medical school watching an experiment by one of my professors who did some wonderful sheep physiology research, studying pregnant sheep. I was in my scrubs, no patients in labor, didn’t have any surgery, and I got this phone call.

“The voice said ‘Jack, we won.’ Metaphorically, you talk about the earth moving under your feet, I just was totally surprised. I hadn’t even thought of the outcome.”

The first woman’s center in Vermont was established a month or two later, and by the spring, Burlington gynocologists started performing abortions.

The Vermont Women’s Health Center eventually evolved into Planned Parenthood of Vermont.

“This decision was the year before Roe v. Wade. It was a very strong decision — 5 to 2— so it’s very unlikely that it will ever be reversed. I don’t think it will be reversed nationally either, but if it ever were, Vermont still has its right for women to have a legal abortion.”

However, the law remained on the books until January 2014 — the Supreme Court can determine the validity of the law, but only the Legislature can remove it — and both the Vermont Senate and the House voted unanimously without debate to do so.

Gov. Peter Shumlin signed the legislation in March of that year, and Beecham received a standing ovation from the 150 or so people gathered for the signing ceremony in Planned Parenthood’s Burlington office.

Although the decision to challenge the Vermont law turned out well, Beecham still regrets signing up for the Air Force medical corps in 1968. He was attending Temple University Medical School in his hometown of Philadelphia. It seemed like a good idea. He would avoid the looming draft, finish his studies and then join the service.

“I didn’t feel exactly good about it right away.”

And shortly after he made the decision, he became a staunch opponent of the Vietnam War and didn’t want to support the military. After some political wrangling, he was designated a Conscientious Objector and was let out of the Air Force contract.

The release from the Air Force allowed Beecham to get on with his career. After leaving UVM, he spent the next three years in Norway, studying cancer and perfecting his Nordic skiing. (As often as he can, Beecham tries to extend the Vermont ski season by returning to Norway to visit friends and the trails.) He went on to practiced for 11 years at the University of Rochester before joining the staff at Mary Hitchcock in 1990 and settling in Strafford. He retired from medicine in 2008.

Beecham’s wife, Char Cutforth, died recently of cancer. Now, he plans to move to Burlington and to remarry in August.

In the meantime, he is getting his Strafford house ready to put on the market in the spring, and he’s devoting as much time as possible to his favorite activities, playing jazz guitar and cross-country skiing.

“I’m passionate about cross-country skiing, and the Strafford Nordic Center is just five minutes from my house. I love this area, and I love Strafford. But my two sons live in California. I’m all alone in the house. One’s life can change in a great hurry.”

Warren Johnston can be reached at

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