ABORTION in AMERICAN HISTORY
The year after abortion was legalized in New York State, (1971)
the maternal morality rate dipped by 45 per cent-----one reason
why legalization can be seen as “a public health triumph.”
WHEN ABORTION WAS A CRIME:
Women, Medicine, and law in the U. S. A.
1867 - 1973
by : Leslie J. Regan
University of California Press
O F ALL THE ISSUES ROILING THE ONGOING CULTURE WARS, ABORTION IS BOTH THE MOST INTIMATE AND THE MOST COMMON. Almost half of American women have terminated at least one pregnancy, and millions more Americans of both sexes have helped them, as partners, parents, health-care workers, counselors, friends. Collectively, it would seem, Americans have quite a bit of knowledge and experience of abortion. Yet the debate over legal abortion is curiously abstract: we might be discussing brain transplants. My files are crammed with articles assessing the question of when human life does begin, the personhood of the fetus and its putative moral and legal status, and acceptable versus deplorable motives for terminating a pregnancy and the philosophical groundings of each one—not to mention the interests of the state, the medical profession, assorted religions, the taxpayer, the infertile, the fetal father, and even the fetal grand parent. Farfetched analogies abound: abortion is like the Holocaust, o r slavery; denial of abortion is like forcing a person to spend nine months intravenously hooked up to a medically endangered stranger who happens to be a famous violinist It sometimes seems that the further abortion is removed from the actual lives and circumstances of realgirls and women, the more interesting it becomes to talk about. The famous-violinist scenario, the invention of the philosopher Judith Jarvis Thomson, has probably inspired as much commentary as any philosophical metaphor since Plato’s cave.
Abortion as philosophical puzzle and moral conundrum is all very well, but what about abortion as a real-life social practice? Since the abortion debate is, theoretically at least, aimed at shaping social policy, isn’t it important to look at abortion empirically and historically? Opponents often argue as if the wide-spread use of abortion were a modern innovation, the consequence of some aspect of contemporary life of which they disapprove (feminism, promiscuity, consumerism, Godlessness, permissiveness, individualism), and as if making it illegal would make it go away. What if none of this is true? In When Abortion Was a Crime, Leslie J. Reagan demonstrates that abortion has been a common procedure—~part of life”—America since the eighteenth century, both during the slightly more than half of our history as a nation when it has been legal and during the slightly less than half when it was not. Important and original, vigorously written even down to the foot-notes, When Abortion Was a Crime manages with apparent ease to combine serious scholarship (it won a President’s Book Award from the Social Science History Association) and broad appeal to the general reader.
Some of the story of illegal abortion has been told by other historians: Linda Gor-don, Rickie Solinger, James C. Mohr. But Reagan, who is an assistant professor of history, medicine, and women’s studies at the University of Illinois, Urbana-Champ -aign, is the first to span the whole period of criminalization and to cover the subject in such depth. Moving skillfully between a nationwide perspective and a de-tailed study of Chicago, Reagan draws on a wide variety of primary documents, many never before examined. Using patient records, transcripts of trials and real inquests into abortion-related deaths, medical-society proceedings, and reports in the popular press, she reconstructs the complex, shifting network of arrangements and understandings that enabled illegal abortion to persist, and sometimes even to flourish, for more than a hundred years. In doing so she not only brilliantly illuminates a hitherto shadowy aspect of American life but also raises crucial questions about the relationship between official mores and the values by which people— including the promulgators of those official mores—make the decisions that shape their lives.
U NTIL THE LAST THIRD OF THE NINETEENTH CENTURY, when it was criminalized state by state across the land, abortion was legal before “quickening” (approximately the fourth month of pregnancy). Colonial home medical guides gave recipes for “bringing on the menses” with herbs that could be grown in one’s garden or easily found in the woods. By the mid eighteenth-century commercial preparations were so widely available that they had inspired their own euphemism (’taking the trade”). Unfortunately, these drugs were often fatal. The first statutes regulating abortion, passed in the l820s and 1830s, were actually poison-control laws: the sale of commercial abortifacients was banned, but abortion per se was not. The laws made little difference. By the I840s the abortion business—including the sale of illegal drugs, which were widely advertised in the popular press—was booming. The most famous practitioner, Madame Restell, openly provided abortion services for thirty-five years, with offices in New York, Boston, and Philadelphia and traveling salespeople touting her “Female Monthly Pills.”
In one of the many curious twists that mark the history of abortion, the campaign to criminalize it was waged by the same professional group that, a century later, would play an important role in legalization: physicians. The American Medical Association’s crusade against abortion was partly a professional move, to establish the supremacy of ‘regular” physicians over midwives and homeopaths. More broadly, anti-abortion sentiment was connected to nativism, anti-Catholicism, and, as it is today, anti-feminism. Immigration, especially by Catholics and nonwhites, was increasing, while birth rates among white native-born Protestants were declining. (Unlike the typical abortion patient of today, that of the nineteenth century was a middle-or upper-class white married woman.) Would the West “be filled by our own children or by those of aliens?” the physician and anti-abortion leader Horatio R. Storer asked in 1868. “This is a question our women must answer; upon their loins depends the future destiny of the nation.” (It should be mentioned that the nineteenth-century women’s movement also opposed abortion, having pinned its hopes on “voluntary motherhood”—the right of wives to control the frequency and timing of sex with their husbands.)
Nonetheless, having achieved their legal goal, many doctors—including prominent members of the AMA—went right on providing abortions. Some late-nineteenth- century observers estimated that two million were performed annually (which would mean that in Victorian America the number of abortions per capita was seven or eight times as high as it is today). Reagan argues persuasively that our image of nineteenth-century medicine is too monolithically hierarchical: while medical journals inveighed against abortion (and contraception), women were often able to make doctors listen to their needs and even lower their fees. And because, in the era before the widespread use of hospitals, women chose the doctors who would attend their whole families through many lucrative illnesses, medical men had self- interest as well as compassion for a motive. Thus in an 1888 exposé undercover reporters for the Chicago Times obtained an abortion referral from no less a personage than the head of the Chicago Medical Society. (He claimed he was con-ducting his own investigation.) Unless a woman died, doctors were rarely arrested and even more rarely convicted. Even midwives whom doctors continued to try to drive out of business by portraying them, unfairly. as dangerous abortion quacks----practiced largely unmolested.
What was the point, then, of making abortion a crime? Reagan argues that its main effect was to expose and humiliate women caught in raids on abortion clinics or brought to the hospital with abortion complications, and thereby send a message to all women about the possible consequences of flouting official gender norms. Publicity—the forced disclosure of sexual secrets before the authorities—was itself the punishment. Reagan’s discussion of “dying declarations” makes particularly chilling reading: because the words of the dying are legally admissible in court, women on their deathbeds were informed by police or doctors of their imminent demise and harassed until they admitted to their abortions and named the people connected with them—including, if the woman was unwed, the man responsible for the pregnancy, who could be arrested and even sent to prison. In 1902 the editors of the Journal of the American Medical Association endorsed the by then common policy of denying a woman suffering from abortion complications medical care until she “confessed”—a practice that, Reagan shows, kept women from seeking timely treatment, sometimes with fatal results. In the late 1920s some 15,000 women a year died from abortions.
This state of affairs—widespread availability punctuated by law-enforcement crackdowns, popular-press scandals, and fitful attempts at medical self-policing persisted for decades. Unsurprisingly, the Depression, during which women stood to lose their jobs if they married or had a child, saw a big surge in the abortion rate. Reagan describes clinics complete with doctors, nurses, receptionists, and printed instructions detailing follow-up care, and birth-control clubs,” whose members would pay regularly into a collective fund and draw abortion fees from it as needed. It was only in the 1940s and 1950s that organized medicine and the law combined to force these long-standing operations out of business and to disrupt the networks of communication by which women had found their way to them. Our popular image of illegal abortion as hard to find, extremely dangerous, sordid, and expensive dates from this period, as dothe notorious “abortion wards” filled with women suffering from botched operations and attempts at self-abortion (always the most dangerous method). Well-connected white women with private health insurance were sometimes able to obtain “therapeutic” abortions, a never-defined category that remained legal throughout the epoch of illegal abortion. But these were rare, and almost never available to nonwhite or poor women. Even for the privileged, though, access to safe abortion narrowed throughout the fifties, as doctors, fearful of being prosecuted in a repressive political climate for interpreting “therapeutic abortion” too broadly, set up hospital committees to rule on abortion requests . Some committees were more compassionate than others: at Mount Sinai, in New York, suicide attempts were considered an appropriate indication; at other hospitals they were ignored. In one instance of particular callousness, when a teenager tried to kill herself after her request was turned down, the committee decided to hospitalize her for the rest of her pregnancy. (She eventually got her abortion, after her multiple suicide attempts proved too disruptive for the staff.)
The conventional wisdom today considers Roe v. Wade to be an avant-garde decision, “judicial activism” at either its enlightened best or its high-handed worst. Reagan places the decision in its historical context, showing that it was a logical response to the times. By the sixties the whole jerry-built structure of criminalization was crumbling, along with the ideology of gender and sexuality that lay behind it. Moderate reforms had already been tried: twelve states permitted abortion in instances of rape, incest, danger to physical or mental health, or fetal defect, but since most women, as always, sought abortions for economic, social, or personal reasons, illegal abortion continued to thrive (something to consider for those who advocate once again restricting legal abortion in this way). When New York State decriminalized abortion in 1970 and thousands of well-off women started traveling there to obtain safe abortions while their disadvantaged sisters continued to risk death at home, the inherent unfairness of a legal patchworkwas thrown into bold relief (something to ponder for those who want to throw the issue “back to the states”). Far from foisting a radical departure on an unready nation, the Supreme Court was responding to a decade-long buildup of popular sentiment for change. The movement was spearheaded by doctors who saw first-hand the carnage created by illegal abortion (more than 5,000 deaths a year, mostly of black and Hispanic women), and whose hands were now firmly tied by the hospital committees they themselves had created. They were joined by civil-liberties lawyers, who brought to their briefs a keen understanding of criminalization’s discriminatory effects; and by grassroots activists in the reborn women’s movement, who by the end of the I 960s were resisting the law, forming such groups as the Society for Humane Abortion, in California, which denounced restrictions as insulting and humiliating to women, and Jane, in Chicago, which began as an abortion-referral service and ended by training its members to perform abortions themselves.
LEGALIZING ABORTION WAS A PUBLIC-HEALTH TRIUMPH that for pregnant women ranked with the advent of antisepsis and antibiotics . In 1971, the year after decriminalization, the maternal-mortality rate in New York State dropped 45 percent. Today, however, the inequality of access that helped to bring illegality to an end is once again on the increase. More than 80 percent of U.S. counties have no abortion providers, and some whole states have only one or two. The Supreme Court has allowed states to erect barriers to abortion denial of public funds for poor women’s abortions, parental consent and notification requirements, mandatory delays. “counseling sessions.” Anti-abortion zealots have committed arson, assault, and murder in their campaign against abortion clinics. A new gener-ation of doctors, who have never seen a woman die from a septic abortion or been haunted by the suicide of a patient denied help, are increasingly reluctant to ter-minate pregnancies . Only 12 percent of medical schools teach first-trimester abortion as a routine aspect of gynecology. If Reagan is right to correlate anti- abortion activity with periods of high anxiety about feminism and radicalisni generally, none of this should come as a surprise . She closes on an ominous note, sketching the possibility of a United States in which not only is abortion once again a crime but anti-abortion fanaticism brings on a Romania-style fetal-police state, complete with government-monitored pregnancies and police investigations of miscarriages.
I camne away from the book more sanguine. One of Reagan’s noteworthy findings, after all, is that the views of the American people about abortion have remained rather stable over two centuries. Attitudes toward early abortions in the eighteenth and early nineteenth centuries, those before quickening, today those in the first trimester—have always been much more permissive and matter-of-fact than the attitudes toward later abortions, just as losing a pregnancy after one or two missed periods, however distressing to a woman who wants to bear a child, has always been seen as a smaller event than miscarrying at six months. Little in the American popular tradition resonates with the “pro-life” doctrine that condemns all abortions alike on the grounds that a fertilized egg is already a baby. Far from being a weird judicial concoction. as its opponents argue, Roe v. Wade’s trimester system, which gradually extends the right of states to regulate and even ban most abortions as the fétus develops, reflects this folk understanding rather well. Similarly, the general lack of enthusiasm for prosecuting those who perform abortions and the almost total failure to prosecute and jail women for having them suggest that whatever Americans may consider abortion to be, it isn’t baby killing, a crime our courts have always punished quite severely.
Whcn Abortion Was a Crime is rich thought-provoking, and revelatory on many levels, not least as a triumphant vindication of the somewhat contested disciplines of women’s history and social history “from the bottom up.” Perhaps its greatest achievement, though, is in a way its simplest: it puts abortion back into the context in which it actually occurs—the lives of obscure and ordinary women. If the abort -ion debate were really about abortion, Reagan’s work would consign many of its terms to the scrap heap: it seems absurd to suggest that the overburdened mothers, desperate young girls, and precariously employed working women who populate these pages risked public humiliation, injury, and death for mere “convenience,” much less out of “secular humanism” or a Lockean notion of property rights in their bodies. It’s even more preposterous—not to mention insulting to see them as standing in relation to their fetuses as a slave-owner to a slave or a Nazi to a Jew.
Reagan suggests that the abortion debate is really an ideological struggle over the position of women. How free should they be to have sexual experiences, in or out of marriage, without paying the price of pregnancy, childbirth, and motherhood? How much right should they have to consult their own needs, interests and well- being with respect to childbearing or anything else? How subordinate should they be to men, how deeply embedded in the family, how firmly controlled by national or racial objectives? If she is right, and I think she is, a work of history is not going to make much of a dent in the certainties of those who would like to see abortion once again made a crime . The people who need this book the most wont read it. Everyone else, though, will find it enlightening.
The ATLANTIC Monthly
May 1997. Vol. 280. (Pgs. 111-115)
77 N. Washington St., Boston, MA 02114
Church of the Science of God
La Jolla, California 92038-3131
© Church of the Science of GOD, 1993