Criminalizing Women

By Dianne Feeley

When Abortion Was A Crime: Women, Medicine, and Law in the United States, 1867-1973 by Leslie J. Reagan (Berkeley: University of California Press, 1997), $29.95 cloth, $17.95 paperback.

ABORTION IN THE United States was not always a crime.  In colonial America women, including slave women, used herbs and roots as abortifacients.  Part of the campaign to criminalize abortion during the second half of the 19th century involved challenging both Common Law and popular belief that, prior to quickening, a woman had a right to abort the fetus and restore her menstruation cycle.

One of the threads that Leslie J. Reagan weaves throughout When Abortion Was A Crime is the assertion by women that they have the right to end an unwanted pregnancy.  Against this need, the state as well as the medical and religious establishments spoke of the dangers of securing an abortion, the equating of abortion with infanticide, and society's need for population policies.

Criminalizing Abortion

Using women's bodies to push their own agenda forward was possible, Reagan explains, because of the intersection of race, gender and class.  Reagan cites Dr. Horatio R.  Storer, leader of the campaign, who in 1868 envisioned the spread of "civilization" west and south by native-born whites: "Shall [these regions] be filled by our own children or by those of aliens?  This is a question our women must answer; upon their loins depends the future destiny of the nation." (11)

Fears fueled by women's sexuality and racism are central to the antiabortion movement from the beginning.  But neither appeals to patriotism nor the criminalization of abortion were enough to reverse the rate of Yankee women's fertility.  From the beginning, then, women's bodies were contested terrain, the battleground upon which politicians, the press and the medical establishment fought.

Reagan pinpoints the antiabortion campaign waged between 1840-60 as "antifeminist at its core."

[It] was a reactionary response to two important efforts of the nineteenth-century women's movements: the fight to admit women into the regular medical profession and the battle to make men conform to a single standard of sexual behavior.  (11)

By 1880 most states had passed antiabortion laws prohibiting abortion at any point in the pregnancy, but with an exception for therapeutic abortions if the pregnancy and childbirth threatened a woman's life.  Thus physicians not only won passage of the law, but were positioned to win the right to determine when an abortion might be necessary.

Additionally harmful to women was the passage of the Comstock Law in 1873.  This anti-obscenity legislation prevented the dissemination of abortion and birth control information through the federal mail system to both physicians and the public.  States and municipalities passed similar ordinances.

Constructing A Framework

Reagan defines the first antiabortion period from 1880-1930.  Despite the law, abortion seems to have been practiced widely.  Key to understanding why the law wasn't implemented is the fact that abortion (and childbirth) usually occurred within the confines of the woman's home.  Many physicians and midwives willingly responded to the woman who had called for their aid while in this private setting.  Abortion was virtually invisible.

Yet between 1890-1920 a campaign against abortion was launched by obstetrics specialists.  Despite reports that documented the rate of death attributed to abortion for both midwives and physicians was the same, specialists blamed midwives as a whole for any resulting death.  This campaign resulted in state legislation.  Reagan cites the supervising and restricting Chicago midwives in 1896, 1908 and 1915.  She remarks:

When reporters and city officials connected midwives and abortion to contemporary anxieties about the sexual vulnerability and independence of single women, politicians at every level acted to control midwives .  .  .  .  Controlling midwives seemed to be the answer to an array of perceived social problems.  (109)

Once again, the medical profession used the "danger" of abortion as a way of elevating their status at the expense of their competition.

In the few years before World War I a birth control movement sprung up.  Reagan remarks that for those opposed to reproductive freedom for women, the birth control movement was a better, more focused target than a diffuse pro-abortion sentiment.  By and large birth control advocates did not defend the practice of abortion so the two issues were not linked to a broader defense of reproductive freedom.

While that is true, I think there are more connections than public pronouncements would indicate.  For example, Dr. Antoinette Konikow, a radical socialist and leader of the birth control movement from Boston, was both a physician and advocate of birth control.  Yet when asked in 1928 at a public lecture about whether she supported the legislation of abortion, she noted its legalization in Russia as a positive development-but one she did not view as possible in the United States.  However during that time frame Konikow performed abortions.  (Xerox of a draft letter by Konikow to Mrs.  Edward N. East, Secretary of the Birth Control League of Massachusetts, in possession of the author.  Also see my entry for Konikow in Encyclopedia of the American Left.)

Institutionalization of Hospital Care

Certainly the Depression helped to legitimate contraceptives.  By 1930 the American Birth Control League had established fifty-five clinics in fifteen states, eight years later they had over 500 clinics.  Reagan cities a poll conducted in 1937 showing that nearly 80% of U.S. women approved of birth control-the year that the AMA finally abandoned its official opposition.

As women's need for birth control and abortion grew during this period, Reagan notes that the medical practice of abortion--both legal and illegal-expanded.  Not only did physicians begin to recognize that social conditions were an essential component in therapeutic abortion cases, but they began to see the role illegal abortions played in raising maternal mortality.  In 1931 the Children's Bureau reported a study of over 7,000 maternal deaths in fifteen states: Illegal abortion was responsible for at least fourteen percent of the country's maternal mortality.

A Look at "Professional Abortionists"

Dr. Josephine Gabler, who practiced during the 1920s and `30s on State Street, in downtown Chicago, kept patient records.  Reagan was able to read seventy, preserved in legal documents.  They identify at least one third of Gabler's patients as working for wages-ranging from teachers and nurses to a waitress, a "wrapper" at a baking company and a sausage maker.  Most married women were homemakers, but fully one quarter worked outside of the home.

Dr. George Loutrell Timanus, who practiced in Baltimore between the mid-1920s and 1951, seems to have had relatively affluent patients while Dr. Edgar Bass Keemer, Jr., was an African-American physician who performed his first abortion in 1938.  His practice primarily served poor and Black women in Detroit.  These specialists, concludes the author, "were an integral part of regular medicine, as the network of physicians who referred patients to these physician-abortionists demonstrates." (133)

Driving Abortion Underground

Whereas between 1870-1940 80% of the abortion cases that came before the Illinois Supreme Court involved the death of the patient, between 1940-60 only one-third of the cases did.  During the later period the police went on the offensive, raiding clinics and offices, compelling women to testify.

Beginning in 1940 hospitals began to set up therapeutic abortion committees, voluntarily policing physicians.  In effect, the anonymous committee defined what was a legal abortion: Legal abortions were done in a hospital by committee approval, illegal ones were not.

Reagan points out that organized medicine could have promoted a liberal interpretation of therapeutic abortion, but instead acted conservatively.  Women were perceived as attempting to "abuse" the law and obtain abortions for non-medical reasons.  Reagan writes, "probably more important than refusing to authorize therapeutic abortion in specific cases, committees discouraged physicians from seeking approval" in the first place.  As a result, with the implementation of a committee most hospitals halved their abortion rate.  Reagan labels this medical monitoring as "McCarthyism within medicine." (180)

In response to this medical repression, both Dr. Keemer and Dr. Timanus attempted to use their own criminal trials as a forum for challenging the U.S. law.  Arguing that they carried out legal abortions, both were convicted because the medical community deserted them.  In 1951 Dr. Timanus wrote personal letters to the 353 doctors who had referred their patients to him for abortions; not one came forward to testify.  By 1958 Dr. Keemer lined up three physicians to testify in his behalf, although only one showed up in court.

As a result of the repression, abortions became harder to obtain, more dangerous, more expensive.  It is this period that most of us active in the fight to decriminalize abortion remember: women were being blindfolded and taken to unknown places for clandestine abortions.  One never knew the competency of the abortionist.

While the rate of therapeutic abortions in New York City dropped 65% between 1942 and 1962, women of color obtaining only 9% of them.  Frequently they were only able to obtain abortions under the agreement that they would also undergo sterilization.

While death from abortion was almost completely preventable, hospitals had entire wards devoted to caring for patients who suffered abortion-related complications.  Maternal mortality rates doubled.  Black women's rates were three to four times higher than the rates of white women.  (209-15)

Reform or Decriminalization?

In 1959 a model reform law, drafted by the prestigious American Law Institute, clarified the legal exception for therapeutic abortions, allowing licensed physicians to perform abortions for physical and mental health reasons, fetal defects, or when pregnancy was the result of rape or incest.  (The idea of allowing pregnant unmarried women to have access to abortion was beyond the pale.)

Interestingly enough, by 1967 twelve states, including California, passed the reform legislation.  California was the big test case-and within a year, it was clear that reform was a failure.  It had not succeeded in freeing doctors up to perform more therapeutic abortions, but further empowered the committee system.  Both the growing feminist movement and a body of health care workers began to press for outright appeal.

In her short epilogue Reagan quickly summarizes the contradictory situation we find ourselves in twenty-five years after the legalization of abortion.  She points to the barriers state legislatures, with the sanction of the Supreme Court, have erected, and reminds us that only 12% of the programs for residents in obstetrics and gynecology are routinely taught first trimester abortions.  In surveying the backlash, the restrictions, the unavailability of abortion in over 80% of U.S. counties, Reagan concludes that while Roe v. Wade may not be completely overturned, it could be effectively gutted by a combination of court and legislative action.  Yet she points to some recent and positive signs of growing activism and alliance building in defense of reproductive rights.

Reagan sees the legalization of abortion as strengthening the battle for patient's rights and civil liberties, as well as a positive development for all women, who want to control their own reproductive lives.  She views the legalization of abortion as the result of public debate, political organizing, coalition building and collective action.  While critical of the medical establishment, Reagan nonetheless recognizes the variety of physicians' responses to the needs of women patients, whatever the "official" medical or legal policy.  For some that may be performing the abortion, for others it is passing along the name of a practitioner.

I found When Abortion Was A Crime most valuable in explaining the availability of abortion under each period of illegalization.

Most importantly, the author summarizes how repressive reproductive policies in the post-World War II period led to "a deeply discriminatory and deadly system, a system stamped at every level with the power dynamics of race, class, and gender.  Abortion was institutionalized in hospitals in two interrelated structures: the therapeutic abortion committee and the septic abortion war." (214)

Reagan allows us to hear the stories of generations of women who sought to control their bodies.  They are powerful.

NOTES

^*See especially Linda Gordon's Woman's Body, Woman's Right: Birth Control in America (New York: Grossman Publishers, 1976, revised edition: New York: Peguin, 1990) and Rosalind Pollack Potchesky's Abortion and Women's Choice: The State, Sexuality, and Reproductive Freedom (New York: Longman, 1984, revised edition: Boston, Northeastern University Press, 1990).
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