Mark Lane: 'Defend Shirley Wheeler!' '70s Daytona abortion case in the news again

After last month’s U.S. Supreme Court decision overturning a constitutional right to abortion, red-leaning states have been competing to see which legislature can enact the strictest law criminalizing abortion.

Some more moderate voices have tried to be reassuring, saying these laws will be used against abortion providers, not women seeking abortions. But can a procedure be criminalized without the people seeking that procedure becoming parties and witnesses to felonies?

That question has brought new attention to a half-century-old Daytona Beach criminal case, State of Florida v. Shirley Ann Wheeler. She is believed to be the only woman in Florida, perhaps in the nation, to be convicted of a felony for having an abortion. Slate’s podcast “Slow Burn” recently highlighted her case.

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Media attention to the case began on the inside pages of the June 4, 1970, Daytona Beach Evening News with a news brief headlined, “Abortion charged.”

“A 22-year-old Daytona Beach woman has been charged with abortion in connection with the stillbirth of a 5-month-old female fetus May 24 at Halifax Hospital, police reported today. Now held in County Jail is Shirley Ann Wheeler.”

Wheeler had hemorrhaged after a second try at an illegal abortion performed by a woman in Jacksonville for $300. Wheeler was treated in the emergency room of Halifax Hospital. Police were alerted after an off-duty policeman overheard hospital orderlies talk about the case in a bar, according to an Associated Press report.

Wheeler was arrested after returning home from the hospital and was charged under an 1868 Florida statute making abortion illegal except to save the life of a mother. The penalties were the same as manslaughter. She was held on a $5,000 bond and faced up to 20 years in prison.

Police and prosecutors had hoped Wheeler would give information on the person who performed the illegal abortion. But Wheeler was not cooperative and, in any case, testified that she didn’t know the identities of either the abortionist or the woman who drove her to Jacksonville to have the abortion.

Wheeler came from an impoverished background in Lawndale, North Carolina, a town of about 500 people. Her mother died when she was a toddler and her father put her in the care of relatives after he remarried. She had been fending for herself from age 16. She was raped by two men as a teen, became pregnant, and gave the resulting child up for adoption. This was soon followed by a bad marriage.

A period of drifting landed her at the second floor of a South Grandview Avenue rental with her boyfriend, Robert Wheeler, who worked in a local print shop. She worked at a wig shop but only part-time due to health problems. She took Wheeler’s last name even though they weren’t married. She described her life to a News-Journal reporter as "not good. Not bad. Just normal."

She was convicted July 13, 1971, after a two-day trial in DeLand. The jury needed only 45 minutes to reach the verdict.

“If men had to go through pregnancy, abortion would have been legal years ago,” she told the court during her sentencing hearing on Oct. 15, 1971.

Because she didn’t have a criminal record, Felony Court of Record Judge Uriel Blount did not impose prison time but sentenced her to two years’ probation. But with the condition that she either marry Wheeler (Florida’s law making it illegal for unmarried couples to live together wasn’t repealed until 2016) or live with relatives in North Carolina. She did the latter, telling the media that she wasn’t legally divorced from the man she had married in North Carolina.

“I could understand the order if I were under 21,” she told The News-Journal.

Wheeler case goes national

As her case had moved to trial, her story already went national, and women’s groups and the Playboy Foundation took up her case and arranged for lawyers. An appeal was filed. She told reporters she was miserable back in Morganton, North Carolina, and as soon as her appellate bond was deposited, she returned to Daytona Beach.

Meanwhile, attention to her story only grew. She was interviewed by The New York Times (“Life for 23‐year‐old Shirley Wheeler has always been on the shadow side of American dream” was the lede) and The Washington Post. Wheeler, with her soft, country-accented voice, found herself speaking at a large abortion-rights rally in Washington, D.C., as the crowds chanted, “defend Shirley Wheeler! Defend Shirley Wheeler!” Rallies in New York, Boston and San Francisco highlighted her case. A 1971 Village Voice column called her "a rallying point throughout the country."

After the Florida Supreme Court overturned her conviction in May 1972, she told The News-Journal she was “greatly relieved,” but “I and millions of other women won’t really be free until we have the right to decide whether or not we want to bear a child.” 

The next year, the U.S. Supreme Court issued the Roe v. Wade ruling that put illegal backroom abortion operations, like the one that landed Wheeler in the emergency room, out of business.

Wheeler lived for a time in Daytona Beach after the ruling but then moved out of town and dropped out of public view. "Slow Burn" reported that she died in 2013.

Will there be similar cases again as police look for witnesses so they can identify and charge people performing newly illegal abortions? This was an unusual prosecution and the actions in the DeLand courtroom caused a nationwide backlash, but some believe it could happen. Which is why the Daytona Beach woman’s name is in the media again and the slogan “defend Shirley Wheeler” has appeared on billboards.

Mark Lane is a News-Journal columnist. His email is mark.lane@news-jrnl.com.