When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973

When Abortion Was a Crime\ Women, Medicine, & Law in the U S \ \ By Leslie J. Reagan \ University of California Press\ Copyright © 1998 Leslie J. Reagan\ All right reserved.\ ISBN: 9780520216570 \ \ \ Introduction \ There would be no history of illegal abortion to tell without the continuing demand for abortion from women, regardless of law. Generations of women persisted in controlling their reproduction through abortion and made abortion an issue for legal and medical authorities. Those women, their lives, and their perspectives are central in this book. Their demand for abortions, generally hidden from public view and rarely spoken of in public, transformed medical practice and law over the course of the twentieth century.\ This book analyzes the triangle of interactions among the medical profession, state authorities, and women in the practice, policing, and politics of abortion during the era when abortion was a crime. As individual women consulted with doctors, they made them understand their needs. Sympathy for their female patients drew physicians into the world of abortion in spite of legal and professional prohibitions. Indeed, it was physicians and lawyers who initiated the earliest efforts to rewrite the abortion laws. Ultimately, women's pressing need for abortion fueled a mass movement that succeeded in reversing public policy, toward abortion in the 1960s and early1970s.\ Public policy made at the national and state levels deserves to be examined where it was carried out: at the local level, in one-on-one interactions and on a day-to-day basis. Understanding the impact of abortion law requires analyzing the actual practice of abortion and the state's enforcement of the criminal laws. The stunning transformation in law and public policy regarding abortion and women's rights was rooted inthe declining conditions of abortion under the criminal law and built on generations of women demanding abortions—and getting them.\ This is the first study of the entire era of illegal abortion in the United States. Most scholarship on abortion has focused on two moments of legal change: when abortion was criminalized in the mid-nineteenth century, and when it was decriminalized a hundred years later in the mid-1960s and early 1970s.1 The century of illegal abortion is typically treated as obscure and unchanging. I find, however, that the history of illegal abortion was dynamic, not static.\ This book joins a growing literature that interrogates and reconceptualizes the relationship between the public and the private. The nineteenth-century ideology of "separate spheres" bifurcated the world into the "public sphere," the world of politics and business in which men lived, and the "private sphere," the domestic world of women and children. The concept of separate spheres proved to be fruitful for women's historians and produced an abundance of important new insights and knowledge.2 Recently, however, women's historians have questioned the idea of separate spheres both because it excluded the majority of women who were working class or women of color and because it inaccurately described white middle-class life. The worlds of men and women no longer appear to be as exclusive and separate as once thought: men lived in the private sphere too, and women walked on public streets, participated in business, worked for wages, and intervened in political life; indeed, women created issues of national political importance.3 Of recently renewed theoretical interest to a variety of scholars is the public sphere itself. Here, attention has been on the nature of the public sphere, its membership, democratic discourse, citizenship, and the formation of public opinion and debate.4\ This book challenges the dichotomy between public and private in another way. It looks more toward the private sphere and finds interaction between what have been assumed to be two distinct spheres. The relationship between public and private is dynamic; it is not just that the public has invaded private life or that excluded, politically unrecognized groups, including women, have found ways to move into public life. Rather, during the period of this study, the private invaded the public. Abortion is an example of how private activities and conversations reshaped public policy. The words and needs of women had the power to change medicine, law, and public debate. The public sphere, moreover, was not the only place where crucial communication and spirited debate occurred. They occurred in "private" arenas such as thehome and the medical office. Those conversations, generally designated "private" and thus irrelevant to public discourse, impacted debates in the public sphere and eventually changed public policy. For over a century, women challenged public policy and altered medical thinking and practice through their conversation and activity in private arenas. I use the terms private and public , but with a sense of their ambiguity and interaction.\ Analysis of public policy should examine how policy has been implemented and by whom, rather than be narrowly restricted to federal legislation or agency activity. Looking at statutes alone, or the actions of legislators or the judiciary, inhibits our view of how law works, how public policy is made, and who acts on behalf of the state to enforce the law. Abortion serves as a case study for rethinking the nature of the state in the United States. Much of the regulation of abortion was carried out not by government agents, but by voluntary agencies and individuals. The state expected the medical profession to assist in enforcing the law. It may be more accurate to think of the state apparatus not as the government, but as consisting of official agencies that work in conjunction with other semiofficial agencies. State officials, this history and others show, have often relied on "private" agents to act as part of the state.5\ Feminist scholars in the 1970s tended to see the medical profession as the source of the regulation of female sexuality and reproduction, but the medical profession's role was more complex.6 This book shifts attention to the state's interest in controlling abortion and the alliance between medicine and the state. It would have been virtually impossible for the state to enforce the criminal abortion laws without the cooperation of physicians. State officials won medical cooperation in suppressing abortion by threatening doctors and medical institutions with prosecution or scandal. Physicians learned to protect themselves from legal trouble by reporting to officials women injured or dying as a re-suit of illegal abortions. By the 1940s and 1950s, physicians and hospitals had become so accustomed to this regulatory stance toward women and abortion that they instituted new regulations to observe and curb the practice of abortion in the hospital. The medical profession and its institutions acted as an arm of the state.\ Yet the medical profession's position was contradictory. While physicians helped control abortion, they too were brought under greater control. State officials demanded that the profession police the pracrices of its members. The duty of self-policing and physicians' fears of prosecution for abortion created dilemmas for doctors who at timescompromised their duties to patients in order to carry out their duties to the state.\ Furthermore, plenty of physicians provided abortions. This book points to the power of patients, even female patients, to influence and change medical practice. The widespread practice of abortion by physicians attests to both the ability of patients to communicate their needs to physicians and the ability of physicians to listen. Physicians' practices were shaped by the experiences and perspectives of private life, not only by professional antiabortion values. The physician-patient relationship was often more close than distant. This was particularly true in the early twentieth century, but became more class stratified as medicine became increasingly specialized and hospital oriented. Medicine was more of a negotiated terrain between physicians and patients than has been realized.7\ The peaks of the medical profession's public hostility to abortion have obscured the depth of medical involvement in abortion. The antiabortion stance of organized medicine should not be mistaken for an accurate representation of the views and practices of the entire profession. This study views the medical profession as complex and composed of competing groups with opposing views and practices rather than as a unified whole. The medical profession was not monolithic, but divided in its attitude toward abortion and in its treatment of patients. This book differentiates between organized medicine and individual physicians. By "organized medicine," I mean medicine's institutional structures, such as the American Medical Association (AMA) and other medical societies, medical schools, and hospitals that produced the official, public image of the profession and acted in concert with the state. Furthermore, this study distinguishes between prescriptive commentary about medical practices, as found in the medical literature, and actual practice by physicians. These official and instructional materials reveal the thought, and perhaps the practice, of only a few. Finally, attention to specialization is crucial. Specialists played critical public roles in the history of abortion; their interests and those of general practitioners were not identical.\ This book is the first to chart the nation's enforcement of the criminal abortion laws. To understand the power of law in the lives of the masses of Americans requires that one take seriously the experiences of ordinary, people caught in criminal investigations. Thus it is necessary to analyze the processes and routine procedures of the legal system that shape those experiences. Most historians of crime and punishment havefocused on police and prisons, while historians of women and the law have focused mainly on marriage and property rights, not crime.8 Surprisingly little historical work has examined the relationship between medicine and law.9 Few have studied law in practice.10 Analysis of the day-to-day workings of the legal system, rather than statutory changes, judicial rulings, or the volume of cases, reveals how the law intervened in the lives of ordinary citizens to regulate reproductive and sexual behavior.11\ Punishment for violation of the law and sexual norms has been gendered. In abortion cases, the investigative procedures themselves constituted a form of punishment and control for women. Publicity and public exposure of women's transgressions further served as punishment. This form of punishment served, in Michel Foucault's words, as "a school." The shame of public exposure was for all of "the potentially guilty.," not only the individual who had been caught. This eighteenth-century mode of punishment, thought to have been replaced by the surveillance of the prison,12 persisted in the state's response to women and their sexual crimes. Without analyzing gender, we cannot fully understand the systems of punishment.\ Even as the abortion statutes remained the same through this period, the meaning of the law and the legality and illegality of abortion changed over time.13 Law is not fixed, but fluid. The criminal abortion laws passed in every state by 1880 made exceptions for therapeutic abortions performed in order to save a woman's life. Because the laws governing abortion did not precisely define what was criminal and what was not, this had to be worked out in practice, in policing, and in the courts. The complexity of defining "legal" and "illegal" abortions for medical practitioners and legal authorities alike, the gray and ever-shifting nature of "criminality," is an important theme in this book. Nor was medical understanding of therapeutic abortion stable. Medicine too is interpretive and changing. Throughout the period of illegal abortion, physicians disagreed on the conditions that mandated a therapeutic abortion and on the methods: there was no consensus.14 Changes in medicine influenced legal definitions of crime; at the same time, the law shaped medical thinking and practice. The medical profession and the legal profession each looked to the other to define the legality of abortion practices. Therapeutic abortion became increasingly important in the 1930s; by the 1960s the practice (and nonpractice) of therapeutic abortion was at the very heart of the campaign to reform and repeal the criminal abortion laws.\ \ \ \ The illegality of abortion has hidden the existence of an unarticulated, alternative, popular morality, which supported women who had abortions. This popular ethic contradicted the law, the official attitude of the medical profession, and the teachings of some religions. Private discussions among family and friends, conversations between women and doctors, and the behavior of women (and the people who aided them) suggest that traditional ideas that accepted early abortions endured into the twentieth century. Furthermore, through the 1920s at least, working-class women did not make a distinction between contraceptives and abortion. What I call a popular morality that accepted abortion was almost never publicly expressed but was rooted in people's daily lives. Americans have a long history of accepting abortion in certain situations as a necessity and as a decision that, implicitly, belongs to women to make. This popular attitude made itself felt in the courts and in doctors' offices: prosecutors found it difficult to convict abortionists because juries regularly nullified the law by acquitting abortionists,15 and few physicians escaped the pressure from women for abortions. Throughout the period of illegal abortion, women asserted their need for abortion and, in doing so, implicitly asserted their sense of having a right to control their own reproduction.\ I am not suggesting a "gap" between people's beliefs and their ability to live up to them, but different, even oppositional, moral perspectives. The values expressed by ordinary people deserve to be taken seriously rather than categorized and dismissed as sinful or mistaken. Though some felt guilt about abortion and found ways to justify their behavior, others never held the official antiabortion views. Prescribed morality and popular morality may not be identical. Analysis of women's practices and ideas—popular behavior and belief—rather than exclusive focus on the statements of male theologians and philosophers suggests that it is incorrect to conclude that hostility to abortion is "almost an absolute value in history."16 The reverse may be more accurate.\ Although this book takes note of religious teachings and the religious background of women who had abortions, it does not focus on religious opinion. Organized religion had little interest in abortion until it entered the public, political arena in the late 1950s and early 1960s.17 There was no reason to energetically fight abortion when, for nearly a century, abortion was a crime and no social movement suggested otherwise. From the 1920s on, however, there was much religious interest in, and division over, another method of reproductive control: contraception. Birth control became a topic of interest because a movementadvocated women's right to reproductive control.18 Further, it is incorrect to assume that the Catholic Church has always organized against abortion or that all Catholics subscribe to the views of their church leaders. Indeed, many Catholics shared what I have described as a popular ethic accepting abortion. A good history of religion and reproductive control would examine not only theology and sermons, but also the attitudes and actions of the congregations, with particular attention to women.\ Women who had abortions did so within a context of illegality and religious disapproval, but the prohibitions were ambiguous. Christian traditions had tabooed abortion since antiquity, but the acceptance of abortion in order to save the life of a pregnant woman had a long tradition as well. Until the mid-nineteenth century, the Catholic Church implicitly accepted early abortions prior to ensoulment. Not until 1869, at about the same time that abortion became politicized in this country, did the church condemn abortion; in 1895, it condemned therapeutic abortion. Protestant churches accepted abortion when pregnancy threatened a woman's life, a view shared by the medical profession and written into the nation's laws. Jewish tradition clearly viewed the woman's life as primary. The Mishnah, a code of ancient Jewish law that guided later rabbinic thought, required abortion when childbirth threatened a woman's life, for "her life takes precedence over its life."19\ This study points to the importance of studying the social history of sexuality as well as the medical and legal discourse about it. These discourses regarding abortion are important because they introduced new meanings of abortion and shaped people's views (and fears) of abortion and sexuality. I analyze the language women used to describe abortion and the production of stories about abortion in the press and in the courtroom. Yet exclusive attention to professional or even popular discourse about abortion would result in a distorted picture of that history. Medical discourse has convinced some scholars that physicians did not perform abortions in the period of illegal abortion,20 and most press coverage of abortion in the early twentieth century gives the misleading impression that abortion was universally condemned and generally fatal. These conclusions are not correct. Analysis of discourse alone would miss the ongoing medical practice of abortion in total contradiction of official medical mores. As others have pointed out, Foucault's theory concerning the production of sexuality through discourse ignores differences in the power of individuals and social groups to enter and shape discourse.21 The publicly articulated and publisheddiscussion of abortion rarely included the voices or perspectives of women who had abortions, except to provide shocking examples of depraved womanhood. Women who had abortions did not intervene to explain themselves, but instead, in other nonpublic arenas, made their perspectives known and acted to obtain a much-needed method for preventing births. More tolerant attitudes toward abortion, rooted in material experiences, persisted in the face of a public discourse that denounced it. The history of sexuality and reproduction demands a combined analysis of ideas and practice.\ Common Law and the Criminalization of Abortion \ Abortion was not always a crime. During the eighteenth and early nineteenth centuries, abortion of early pregnancy was legal under common law.22 Abortions were illegal only after "quickening," the point at which a pregnant woman could feel the movements of the fetus (approximately the fourth month of pregnancy). The common law's attitude toward pregnancy and abortion was based on an understanding of pregnancy and human development as a process rather than an absolute moment. Indeed, the term abortion referred only to the miscarriages of later pregnancies, after quickening. What we would now identify as an early induced abortion was not called an "abortion" at all. If an early pregnancy ended, it had "slipp[ed] away," or the menses had been "restored."23 At conception and the earliest stage of pregnancy before quickening, no one believed that a human life existed; not even the Catholic Church took this view.24 Rather, the popular ethic regarding abortion and common law were grounded in the female experience of their own bodies.\ Colonial and early-nineteenth-century women, historians have learned, perceived conception as the "blocking" or "obstructing" of menstruation, which required attention. The cessation of the menses indicated a worrisome imbalance in the body and the need to bring the body back into balance by restoring the flow. This idea of menstruation corresponded with medical and popular understanding of sickness and health. The body was a delicate system of equilibrium that could easily be thrown out of balance—by a change in weather or diet, for example—and that then needed to be restored through active intervention. A disruption in the healthy body, in the worldview of patients and physicians, required a visible, often violent, physical response to treatment in order to restore equilibrium. This theory underlay eighteenth-and nineteenth-century regular medical practice, which emphasized heroic measures—bleeding, blistering, purging, and puking—in response to sickness. The response to the blocking of the menses was part of this shared understanding of the body: women took drugs in order to make their menses regular and regarded the ensuing vomiting and evacuation as evidence of the drugs' effective action.25\ Restoring the menses was a domestic practice. The power of certain herbs to restore menstruation was widely known. One colonial woman who feared pregnancy had "twice taken Savin; once boyled in milk and the other time strayned through a Cloath." Savin, derived from juniper bushes, was the most popular abortifacient and easily acquired since junipers grew wild throughout the country. Other herbs used as abortifacients included pennyroyal, tansy, ergot, and seneca snakeroot. Slave women used cottonroot. Many of these useful plants could be found in the woods or cultivated in gardens, and women could refer to home medical guides for recipes for "bringing on the menses."26\ Both of these concepts, blocked menses and quickening, must be taken seriously by late-twentieth-century observers. Blocked menses cannot be dismissed as an excuse made by women who knew they were pregnant. Quickening was a moment recognized by women and by law as a defining moment in human development. Once quickening occurred, women recognized a moral obligation to carry the fetus to term. This age-old idea underpinned the practice of abortion in America. The legal acceptance of induced miscarriages before quickening tacitly assumed that women had a basic right to bodily integrity.\ By the mid-eighteenth century, the most common means of inducing abortion—by taking drugs—was commercialized. The availability of abortifacients was so well-known that a common euphemism described their use. When Sarah Grosvenor, a Connecticut farm girl, confided to her sister in 1742 that she was "taking the trade," her sister understood.27 That Grosvenor successfully conveyed her meaning to her sister in three metaphoric words tells us a great deal about the world of mid-eighteenth-century New England. Many New Englanders, including these sisters, knew of the possibility of inducing an abortion by purchasing and ingesting drugs. The need for a euphemism tells of the difficulty of speaking openly about sex and reproductive control and of the need for secrecy. Yet it reveals an awareness that women could anddid regulate their own fertility through abortion. Furthermore, abortifacients had become a profitable product sold by doctors, apothecaries, and other healers.\ The first statutes governing abortion in the United States, James Mohr has found, were poison control measures designed to protect pregnant women like Grosvenor by controlling the sale of abortifacient drugs, which often killed the women who took them. The proliferation of entrepreneurs who openly sold and advertised abortifacients may have inspired this early legislation, passed in the 1820s and 1830s. The 1827 Illinois law, which prohibited the provision of abortifacients, was listed under "poisoning."28\ It is crucial to recognize what these early-nineteenth-century laws did not cover: they did not punish women for inducing abortions, and they did not eliminate the concept of quickening.29 Even as poison control measures, they said nothing about growing the plants needed in one's own garden or mixing together one's own home remedy in order to induce an abortion. The legal silence on domestic practices suggests that the new laws were aimed at the commercialization of this practice and, implicitly, retained to women the right to make their own decisions about their pregnancies before quickening.\ By the 1840s, the abortion business boomed. Despite the laws forbidding the sale of abortifacients, they were advertised in the popular press and could be purchased from physicians or pharmacists or through the mail. If drugs failed, women could go to a practitioner who specialized in performing instrumental abortions. Advertisements and newspaper exposés made it appear that what had been an occasional domestic practice had become a daily occurrence performed for profit in northern cities. Madame Restell, for example, openly advertised and provided abortion services for thirty-five years. Restell began her abortion business in New York City in the late 1830s; by the mid-1840s, she had offices in Boston and Philadelphia and traveling agents who sold her "Female Monthly Pills." Restell became the most infamous abortionist in the country, but she was not the only abortionist.30 The clientele of these busy clinics were primarily married, white, native-born Protestant women of the upper and middle classes.31\ In 1857, the newly organized AMA initiated a crusade to make abortion at every stage of pregnancy illegal. The antiabortion campaign grew in part, James Mohr has shown, out of regular physicians' desire to win professional power, control medical practice, and restrict their competitors, particularly Homeopaths and midwives. "Regular," or "orthodox,"\ \ \ \ physicians, practitioners of "heroic" medicine, had come under attack in the 1820s and 1830s as elitist. They faced competition from a variety of practitioners from other medical sects, collectively known as "Irregulars." Through the 1870s, regular physicians across the country worked for the passage of new criminal abortion laws. In securing criminal abortion laws, the Regulars won recognition of their particular views as well as some state control over the practice of medicine.32\ Though professional issues underlay the medical campaign, gender, racial, and class anxieties pushed the criminalization of abortion forward. The visible use of abortion by middle-class married women, in conjunction with other challenges to gender norms and changes in the social makeup of the nation, generated anxieties among American men of the same class. Birth rates among the Yankee classes had declined by midcentury while immigrants poured into the country.33 Antiabortion activists pointed out that immigrant families, many of them Catholic, were larger and would soon outpopulate native-born white Yankees and threaten their political power. Dr. Horatio R. Storer, the leader of the medical campaign against abortion, envisioned the spread of "civilization" west and south by native-born white Americans, not Mexicans, Chinese, Blacks, Indians, or Catholics. "Shall" these regions, he asked, "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."34 Hostility to immigrants, Catholics, and people of color fueled this campaign to criminalize abortion. White male patriotism demanded that maternity be enforced among white Protestant women.\ The antiabortion campaign was antifeminist at its core. Women were condemned for following "fashion" and for avoiding the self-sacrifice expected of mothers. "The true wife," Storer declared, did not seek "undue power in public life, . . . undue control in domestic affairs, . . . [or] privileges not her own."35 The antiabortion campaign 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. The antiabortion campaign coincided with the fight by male Regulars to keep women out of their medical schools, societies, and hospitals. Boston and Harvard University, Storer's hometown and alma mater, were key sites of struggle over women's place in medicine, and Storer was personally engaged in the battle against female physicians.36 Advocates of women in medicine argued that women doctors wouldprotect women patients from sexual violation.37 Regular male doctors degraded female physicians by accusing them, along with midwives, of performing abortions.\ The relative morality of men and women was of crucial importance to this campaign. For the specialists, whose interest in the female reproductive system raised questions about their sexual morality, the antiabortion campaign was a way to proclaim their own high morality in contrast to their competitors, their female patients, and even the ministers who tolerated abortion.38 It was at the same time a backlash against the women's movement's critique of male sexual behavior and feminist claims to political power. Nineteenth-century feminists expressed their anger with male sexual domination and promiscuity in a number of movements, including the campaigns against prostitution and slavery and the fight for temperance. All sections of the women's movement advocated "voluntary motherhood," a slogan that addressed both men's sexual violation of their wives and women's desire to control childbearing. Women saw themselves as morally superior and urged men to adopt a single standard—the female standard of chastity until marriage, followed by monogamy and moderation.39 The campaign against abortion challenged this feminist analysis of men by condemning women for having abortions. Indeed, Storer compared abortion to prostitution and, in so doing, called into question all claims made by middle-class nineteenth-century women on the basis of moral superiority. "There is little difference," he proclaimed, "between the immorality" of the man who visited prostitutes and the woman who aborted.40 The nineteenth-century women's movements never defended abortion, but activist women and women doctors were blamed for the practice of abortion nonetheless.\ The antiabortion campaign attempted to destroy the idea of quickening. As physicians targeted quickening, they discredited women's experiences of pregnancy and claimed pregnancy as medical terrain. "Quickening," as Storer described it, "is in fact but a sensation." A sensation that had emotional, social, and legal meaning was thus denigrated. Quickening was based on women's own bodily sensations—not on medical diagnosis. It made physicians, and obstetricians in particular, dependent on female self-diagnosis and judgment. Quickening could not be relied upon as an indicator of fetal life because, Storer argued, it did not occur at a standard moment. "Many women never quicken at all," he joked about women's perceptions, "though their children are born living."41 Storer's propaganda aimed to erase the distinctions between earlier and later stages of pregnancy, thereby redefining the restoration of the menses. What had previously been understood as a blockage and a restoration of the menses prior to quickening was now associated with inducing a miscarriage after quickening by labeling it abortion. Furthermore, Storer equated abortion with infanticide.42\ Regular medical men had entered the debate about sexual politics by attacking the female practice of abortion as immoral, unwomanly, and unpatriotic. In giving abortion new meaning, the Regulars provided a weapon that white, native-born, male legislators could use against the women of their own class who had been agitating for personal and political reform. Regular physicians won passage of new criminal abortion laws because their campaign appealed to a set of fears of white, native-born, male elites about losing political power to Catholic immigrants and to women. Class privilege did not protect middle-class white women from public policy designed to control them. Although the criminalization of abortion was aimed at middle-class white women, it affected women of every, class and race. The new laws passed across the country between 1860 and 1880 regarded abortion in an entirely different light from common law and the statutes regulating abortifacients. In general, the laws included two innovations: they eliminated the common-law idea of quickening and prohibited abortion at any point in pregnancy. Some included punishment for the women who had abortions.43 The "Comstock Law" passed in 1873 included abortion and birth control in federal antiobscenity legislation; states and municipalities passed similar ordinances.44\ The antiabortion laws made one exception: physicians could perform therapeutic abortions if pregnancy and childbirth threatened the woman's life. A bill criminalizing abortion unless done for "bona fide medical or surgical purposes" passed the Illinois state legislature unanimously and was signed into law in 1867. A few years later, Illinois passed another law prohibiting the sale of abortifacients but made an exception for "the written prescription of some well known and respectable practicing physician." Physicians had won the criminalization of abortion and retained to themselves alone the right to induce abortions when they determined it necessary.45\ Through the antiabortion campaign, doctors claimed scientific authority to define life and death. In so doing, they claimed the authority of religious leaders. In leading this moral crusade and thoroughly criticizing the ministry's lack of interest in abortion, regular doctors set themselves above religious leaders as well as above the general populace. The medical profession's claim to moral purity and the authority of the clergy was a stepping-stone to greater social authority. Regular physicians won an important victory when they persuaded the nation's states to criminalize abortion. Physicians entered a new partnership with the state and won the power to set reproductive policy. In the process, women's perceptions of pregnancy were delegitimated and women lost what had been a common-law right.\ Periodization: Changing Patterns of Illegal Abortion \ During the more than one hundred years that abortion was illegal in the United States, the patterns, practice, policing, and politics of abortion all changed over time, though not always simultaneously. I trace the history along several lines at once, according to the location, practice, and availability of abortion as well as its regulation. Abortion was widely available throughout much of the era when abortion was a crime. Yet periods of tolerance were punctuated by moments of severe repression. At some points the changing structure of medicine brought about crucial changes in the history of abortion; at others, changes in women's lives or the political and economic context came to the fore.\ In the nineteenth century, abortion came under attack at a moment when women were claiming political power; in the twentieth century, it came under attack when they claimed sexual freedom. Abortion, like contraception, means that women can separate sex and procreation—still a controversial notion. Antiabortion campaigns developed when women asserted sexual independence, as during the Progressive Era and since the 1970s. When abortion was most firmly linked to the needs of family rather than the freedoms of women, as during the Depression, it was most ignored by those who would suppress it. Periods of antiabortion activity mark moments of hostility to female independence.\ The epoch of illegal abortion may be broken down into four periods. The first covers the time from the criminalization of abortion state-by-state, accomplished nationwide by 1880, to 1930. This period, covering fifty years, is heavily marked by continuity. As other historians have also found, the reproductive lives of most women and the day-to-day practice of most physicians changed slowly.46 In this period, abortionwas widely accepted and was practiced in women's homes and in the offices of physicians and midwives. The diversity of practitioners, the privacy of medical practice, and the autonomy of physicians in the late nineteenth and early twentieth centuries made the widespread medical practice of abortion possible. A crackdown on abortion occurred between 1890 and 1920 as specialists in obstetrics renewed the earlier campaign against abortion, and the medical profession was drawn into the state's enforcement system.\ The structural transformation that occurred during the 1930s, the second period, was crucial for the history of abortion. Abortion became more available and changed location. As the practice moved from private offices and homes to hospitals and clinics, abortion was consolidated in medical hands and became more visible. The changes wrought by the Depression accelerated the pace of change in the coming decades, particularly in the methods of enforcing the criminal abortion laws.\ The third period was marked by increasing restrictions on abortion by state and medical authorities and intensifying demand for abortion from women of all groups. This period begins in 1940, when the new methods of controlling abortion were first instituted, and continues through 1973, when they were dismantled. In reaction to the growing practice of abortion as well as apparent changes in female gender and reproductive patterns, a backlash against abortion developed. 1940 marks a dividing line as hospitals instituted new policies, and police and prosecutors changed their tactics. The repression of abortion was part of the repression of political and personal deviance that took place in the 1940s and 1950s. Yet even in this period, the practice of abortion expanded in new directions in response to relentless demand. The new repression of abortion, however, was devastating for women. A dual system of abortion, divided by race and class, developed. During the postwar period, the criminalization of abortion produced its harshest results.\ A new stage in the history of abortion, the movement to legalize it, overlaps with the third period. The movement to decriminalize abortion began in the mid-1950s and arose out of the difficult experiences resulting from the repression of abortion in the 1940s and 1950s. In the 1950s, a handful of physicians began to challenge the very abortion laws their profession had advocated a century earlier. The progress of that challenge attests to the continuing power of the medical profession to make public policy regarding reproduction. As legal reform moved forward, a new feminist movement arose, which radically transformed the movement for legal change. When the women's movement describedabortion as an aspect of sexual freedom, they articulated a new feminist meaning for abortion; when they demanded abortion as a right, they echoed generations of women.\ The structure of this book follows this periodization. The first half of the book uncovers the history of abortion from the late nineteenth century through the 1920s. Chapters I through 4 each cover different aspects of abortion, from women's lives to practice to politics to enforcement, during the first half-century of illegal abortion. The changes of the 1930s, both medical and social, precipitated other changes. The second half of the book traces the history of abortion in chronologically ordered chapters concluding with the U.S. Supreme Court decisions that ended the era of illegal abortion.\ Women's history of abortion needs to be examined both as a commonly felt need to control reproduction, arising from women's biological capacity to bear children and social relations that assign childbearing to women, and in terms of differences among women. This book differentiates among women by class, race and ethnic identity, and marital status. Though class did not absolutely determine access to or safety of abortion, class position helped define when a woman felt she needed an abortion and affected the type available to her. In general, urban women had greater access to abortion than rural women, though some rural women located abortionists in their areas or traveled to cities for abortions. Race played a less obvious role in access to abortion, though the grim statistics of the postwar period show the connection between discrimination and death. I have made a specific effort to locate sources related to African Americans in order to learn more about black women's use of abortion and how race shaped the history of abortion.47 Evidence concerning women of color is meager, however, until the 1930s, when medical and sociological studies began separating their findings by race. Before then, contemporary observers tended to focus their attention on the differences among many (white) foreign-born ethnic groups.\ This book integrates a national analysis of the history of abortion with a local study. The advantage of this approach is that it connects everyday life and local medical and legal practice to national policy. It examines that relationship rather than assuming that all the public policy action takes place on the federal level without reference to local and "private" events. I select a major metropolis in order to uncover the nature of both abortion practices and police enforcement of the criminal abortion laws. Chicago, the second largest city in the nation, is the focus of my local study. Chicago, the city in "the heartland" that has often served as a metaphor for the spirit of America, was also known as an important medical center (the home of the AMA) and as a regional center for abortion.48 Trains brought European immigrants, men and women migrating from farms to the city, African Americans moving from the South to the North, all going to live and work in Chicago. The same trains brought women looking for abortions. Directing my attention to one city enabled me to uncover the nitty-gritty details of the practice and regulation of abortion.\ Though much of my analysis of the history of abortion draws on Chicago as a case study, sources verify that my findings hold true for other cities, large and small. Throughout I present national data and trends as well as regional ones and take note of patterns elsewhere. The book moves back and forth from a national overview of abortion practices and politics to a close look at events in Chicago. As medical practice became more standardized in hospitals, the story becomes a more national one and key events take place in other cities: New York, Detroit, Baltimore, Philadelphia, San Francisco, Washington, D.C., and elsewhere. This is primarily a study of abortion in urban areas, where abortion was concentrated. I comment occasionally on practices in rural areas, but the history of reproductive control and abortion is likely to be somewhat different there.\ Legal records, most notably lower-level court and criminal trial records, and medical literature make up the foundation of my research. I have also surveyed other government documents, newspapers, popular periodicals, hospital records, and manuscript collections. Using these materials, I have delineated how medical thinking and state regulation have changed over time. Yet this is more than a study of prescriptive literature or policy. I have uncovered the circumstances of hundreds of actual induced abortions and reconstructed changing abortion practices.49 This study periodizes the history of abortion for the first time.\ This book presents the lives of many women and their abortions in rich detail in order to convey the variety and intricacy of the situations that made abortion necessary for women. It is in the minutiae of women's lives that we can discover why women had abortions and how they won sympathy from physicians who belonged to a profession dedicated to fighting abortion. Abortion was a moment in a woman's reproductive life. It cannot be separated from sexual relations or reproduction as a whole. Women themselves did not separate them, nor should we, whether analyzing abortion in the past or present. This book deepensour understanding of the female experience of reproduction and the connections between sexuality, contraception, pregnancy, and childbirth.50 At its most fundamental, a policy that restricts abortion is one that forces women into maternity. Without contraceptives and abortion, most women in heterosexual relationships will become pregnant and bear children, whether they want to or not. When women sought abortions, they often revealed the texture of heterosexual relations and the rest of their lives. Many situations made enduring pregnancy unbearable to women. In using abortion, women rebelled against the law and asserted their sense that the decision to carry a pregnancy to term or to abort was theirs to make. A few expressed in words as well as in action the view that abortion was their right. The experiences of women's private lives and private practices over the course of one hundred years altered medical thinking and reshaped public policy. Despite the fact that women's abortion narratives are part of our own contemporary discourse, the stories told here have long been hidden.\ \ \ \ \ \ \ Continues... \ \ \ \ Excerpted from When Abortion Was a Crime by Leslie J. Reagan Copyright © 1998 by Leslie J. Reagan. Excerpted by permission.\ All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.\ Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site. \ \

\ Publishers Weekly - Publisher's Weekly\ In 1900, women attempted to induce abortions by inserting knitting needles, crochet hooks, hairpins, scissors, chicken feathers and cotton balls into their uteruses. In 1917, black women 'pinned their faith on... [the] ingestion of... starch or gunpowder and whiskey.' Reagan, an assistant professor of history, medicine and women's studies at the University of Illinois, dedicates her disturbing work on abortion in America before Roe v. Wade to 'the lives of... women who died trying to control their reproduction.' She chronicles the covert efforts and subsequent prosecution of doctors and midwives, and of unmarried women and their lovers (while married women made up the majority of clientele and were accused of 'race suicide,' they were pursued less often). Reagan has her work cut out for her: Though the law forbade abortions, she writes, 'some late-19th-century doctors believed there were two million abortions [performed] every year.' And then, as now, debate raged: though some doctors disagreed, the Journal of the American Medical Association declared itself against abortion in the case of rape since 'pregnancy is rare after real rape.' For those who take legal abortion for granted, Reagan's work is an eye-opener.\ \ \ \ \ Library JournalThis book brings to life both the medical and the legal history of abortion in the United States by using newspaper articles, transcripts of trials and inquests, and other archival sources to show readers how people were affected by the criminalization of private activities. Reagan (history, medicine, and women's studies, University of Illinois, Urbana-Champaign) demonstrates that abortion has always been available to women, whether or not it was legal. The documentation here points out the use of physicians as police and moral authorities, the correlation of economic depression with the need for abortion, the discrimination against unmarried women and midwives, and the paternalism of the medical profession. These factors have, until Roe v. Wade, placed many obstacles in the path of women seeking abortion. The current backlash against abortion threatens a return to the difficult times of the past. This fascinating history, with its extensive bibliography, is an essential purchase for academic medical, legal, and women's studies collections. -- Barbara M. Bibel, Oakland Public Library, California\ \ \ Library JournalThis book brings to life both the medical and the legal history of abortion in the United States by using newspaper articles, transcripts of trials and inquests, and other archival sources to show readers how people were affected by the criminalization of private activities. Reagan (history, medicine, and women's studies, University of Illinois, Urbana-Champaign) demonstrates that abortion has always been available to women, whether or not it was legal. The documentation here points out the use of physicians as police and moral authorities, the correlation of economic depression with the need for abortion, the discrimination against unmarried women and midwives, and the paternalism of the medical profession. These factors have, until Roe v. Wade, placed many obstacles in the path of women seeking abortion. The current backlash against abortion threatens a return to the difficult times of the past. This fascinating history, with its extensive bibliography, is an essential purchase for academic medical, legal, and women's studies collections. -- Barbara M. Bibel, Oakland Public Library, California\ \ \ \ \ School Library JournalMost books written about this subject focus on the post-Roe v. Wade period. Reagan relates heart-wrenching stories of women who survived abortions and those who did not. She includes narratives from physicians, midwives, husbands, and boyfriends. The stories of poisonous potions drunk by women in an attempt to 'open up the womb' remind readers that reliable birth control and pregnancy tests are recent developments. The author's research for this book comes from the Chicago A.M.A. archives beginning in the mid-1800s when the organization led the way to criminalize abortion. Reagan utilized court records, police reports, medical literature of the day, and coroners' reports. The result is a scholarly chronicle of abortion in a large city. Containing 112 pages of endnotes and bibliography, and a 20-page index, this is a well-researched, organized, and interesting look at the inception and expansion of women's reproductive freedom as a political issue. -- Nancy Karst, Fairfax County Public Library, Virginia\ \ \ \ \ Lauren BowenIn this provocative and timely work, Reagan, a social historian, challenges us to think differently about the role abortion has played in the lives of American women. In so doing, she refines our understanding of the role law plays in ordinary lives as well as complements our understanding of how law shapes and is shaped by institutions and structures such as medicine. In the tradition of Michael Lipsky's Street Level Bureaucrats, Reagan wants us to examine public policy made at the national level where it is carried out: at the local level, in one-on-one interactions and on a day-to-day basis.\ Analyzing the actual practice of abortion and the enforcement of statutes criminalizing abortion asks the reader to view the law as an organic entity that takes its meaning from the daily lives of those most directly affected by the codified policy. Although not an entirely original argument, Reagan's case study nicely bolsters this understanding of law and policy and does so in a way that also challenges traditional views of women and the nature of their lives prior to the modern women’s movement. Indeed, one of the central themes of this book is that women should be viewed as agents rather than as victims. Instead of being acted upon by an oppressive society and state, women sought to take control of their lives and fertility by demanding abortion when deemed necessary and appropriate. Reagan's historical account culminates in the argument that reform in the form of ROE v. WADE (1973) was possible only because there had been a longstanding acceptance and practice of abortion despite its illegality. As Reagan notes as she begins her analysis of the reform movement to legalize abortion, '[e]xplanations for the transformation of abortion law that point to media coverage of celebrated abortion cases or changes in medical technology or emphasize the personalities of the Supreme Court all simplify the origins of legal and social change.' Subtle and sophisticated approach to understanding the relationship between legal and social change. Reagan demonstrates nicely that law and medicine share an intertwined and mutually reinforcing relationship. This relationship in turn defines and is defined by the needs and interests of women although not always in a way that is advantageous for them. Reagan breaks down the era of illegal abortion into four historical periods and organizes the book according to this chronology. She relies primarily on legal records such as those resulting from death inquests to inform her argument but also cites although newspaper accounts frequently. Most of her data are from Cook County, Illinois, but she intersperses the Illinois data with other studies from the time period or alternative data sources. As a political scientist, I found this method to be a bit disconcerting as I was not always sure how generalizable the findings were. I am willing to attribute this reaction to a hazard of having a political scientist critique the work of an historian. As the book is thoroughly footnoted, I suspect that while the observations and inferences may not be universally applicable, the reader can accept the arguments with a high degree of confidence.\ The first of Reagan's periods dates from the time of criminalization state by state, which was completed in 1880, until around 1930. Chapters 2-4 document and analyze this historical era. This period was one of continuity where abortion was widely accepted and practiced in women's homes, the offices of physicians, and the offices of midwives. The historical evidence suggests that hundreds of thousands of abortions took place annually during this time period. Most of the women that had abortions were married. Reagan argues that the widespread acceptance of abortion despite its illegality 'suggests the persistence of a popular ethic that differed from that of the law and the official views of medicine and religion' . Thus, Reagan encourages the reader to consider the possibility that the practice of abortion was not markedly different than in the modern era when it has been legal. Indeed, despite some newspaper articles to the contrary, in many ways it may have been a less contentious occurrence at the end of the 19th century than at the end of the 20th century. In support of this point, Reagan notes that few women referred to the procedure as an abortion. Most women during this time still associated pregnancy with 'quickening' or the time when fetal movement is first felt in the womb. Abortions, then as now, for the most part took place long before quickening occurred. Women viewed this procedure as a way to resume their menstrual cycles or of returning their bodies to their 'normal' state. At the same time she is arguing that abortion was commonplace and accepted, she concedes that it was not a particularly public practice. Perhaps the greatest contribution of this work in terms of understanding the status of women is Reagan's depiction of abortion as 'an open secret' (the title of Chapter 2). She seeks to challenge the metaphor of silence used by scholars to depict the status of women at the turn of the 20th century. Instead, she opts for the metaphor of secrecy. While abortion may not have been a topic warranting attention from national policymakers, it was discussed among women, their families, friends and health care providers. While these conversations may have been individualized, they nonetheless defined policy in practice and had real meaning for women's lives. Thus, equating this private attention with silence privileges public, political speech as it has been traditionally understood and obscures women's historical experiences, portraying them as more isolated, victimized and helpless than they felt. This situation makes the secrecy metaphor more appropriate. None of this is to say that during this time there were no attempts to enforce the anti-abortion laws. Much of Reagan's analysis is based on the records from inquests conducted after women died from an abortion. That most enforcement occurred only in the most dire of outcomes lends credence to Reagan's view that abortion was widely accepted. Then, as now, there were those concerned that abortion was too common and especially that its illegality was not sufficiently deterring its practice. While abortion did not garner national political attention, it was a contested state and local issue during the Progressive era. The anti-abortion campaigns of this time were centered on trying to change how people thought of abortion -- to establish that life began at conception rather than quickening. This shift meant that medical community was key in efforts to repress abortion during this time. Not surprisingly, anti-abortion campaigns had their greatest success when attention was focused on midwives rather than physicians suggesting that throughout the history of abortion, the interests of doctors were paramount in defining the scope of the debate and its resolution. The second period, the 1930s, was one of structural transformation. It is detailed in Chapter 5. Abortion was even more available, in largely because of the social and economic conditions produced by the Great Depression, thereby demonstrating the relationship between economics and reproduction. The medical practice of abortion expanded during the 1930s in large part because women were pressuring their doctors for help. The practice of abortion also changed location during this time period moving to hospitals and clinics. As Reagan notes (p.133), the proverbial back alley butcher overemphasizes fatalities and misrepresents the nature of illegal abortion. Reagan says (p. 159) that thousands of women obtained abortions in conventional medical settings and suffered no complications afterwards. All this emphasizes that the relationship between women and the medical community is more complicated than frequently assumed by feminist scholars. Many doctors were sympathetic to the need to control fertility via abortion. This is probably best demonstrated in Reagan's discussion here (and in the following chapter) of the circumstances under which therapeutic abortions could be performed. Reagan argues quite convincingly that social conditions entered medical judgment and shaped what was viewed as therapeutic and what was not. Mental health was long considered relevant (it is no surprise in this context that it was part of Blackmun's majority opinion in ROE). The result was that during the Depression there was an expansion of abortion. Many abortions were performed safely in clinics using standard medical practice. Police were frequently bribed to preclude enforcement of criminal statutes. This expansion was a function of economic and social needs of women as well as the changing nature of medicine. Efforts to control abortion emerged during the third period, dating from 1940 until 1973. These are detailed in Chapters 6 and 7. According to Reagan, this era of repression was attributable to a backlash against the growing practice of abortion as well as changes in gender and female reproductive patterns. Clinics were raided and trusted and skilled abortionists were prosecuted. Women patients were frequently arrested in clinic raids. This was in marked contrast to the practice of enforcing the law when abortion resulted in death and seeking dying declarations from women whose abortions proved to be fatal. During this period many hospitals created therapeutic abortion committees. While initially some viewed such a move as potentially liberating, it soon proved to be an impediment to abortion. Committees were less likely to consider the whole situations of women and began focusing on strictly medical and clinical indications for therapeutic abortion. This peer review system then had the effect of controlling individual doctors and altering the relationship between women and their physicians. Reagan's analytic to link this trend to the anticommunist sentiment and McCarthyism of the era seems a bit strained. While it seems credible that prevailing ideologies shape the practice of abortion (indeed, she makes these connections quite well when discussing the Depression) the argument is insufficiently developed to be persuasive. In any event, it is in this period when abortion becomes a clandestine affair. As medicine came to define therapeutic abortions increasingly narrowly and as women were subjected to more intrusions and scrutiny by the state, medical system abortions became harder to obtain. Accordingly, they became more expensive and dangerous and a dual system of abortion emerged dividing women by race and class. This era of repression prompted the movement to legalize abortion in the fourth historical period, which dates from the 1950s until 1973 and overlaps with the third. It is chronicled in Chapter 8. Reagan examines three phases of reform, each with its own key actors representing different groups and offering different perspectives. These actors included the professionals, physicians and lawyers, and the feminists. Their efforts encompassed grassroots resistance efforts and constitutional challenges by social movement lawyers that merged the feminist and medical professional interests. The overlapping of the repression and reform time periods is simultaneously the strength and frustration of the book. By noting that the era of repression coexisted and spawned reform efforts, Reagan demonstrates that the social movement to decriminalize abortion was largely contingent upon this repression. However, the social movement was successful because of the era predating the period of repression. Without the longstanding acceptance of abortion by so many, reform efforts probably would have failed. This dialectical approach to legal and social change is compelling and much of what makes this work such a valuable contribution to the literature. Nevertheless, the method used and data employed to support the argument is sometimes troubling. For example, in Chapter 7, Reagan provides graphic detail and rich accounts of the horrors of obtaining illegal abortions in the 1950s during a repressive time. Yet in Chapter 8, when describing the movement for reform, she writes equally eloquently about feminist networks guaranteeing safe abortions to women as an alternative to the medical establishment. While these scenarios are not mutually exclusive and certainly did coexist given the overlapping of the eras, the selective discussion of both realities reads at times more like finding the data to support the argument of a particular chapter than of placing the simultaneous events into a comprehensive context. The book ends with a comparatively brief epilogue/conclusion. I must confess that I found it to be profoundly disappointing relative to the rest of the volume. Such careful and thorough documentation of the entire period of illegal abortion warrants an analytic summary that includes a discussion of the implications of the research for understanding women, law and medicine. Instead, the epilogue is rather polemical and not always grounded in the preceding text. I am not asking for neutrality here. I appreciate that Reagan’s treatment of her subject comes with a particular viewpoint or lens through which she has analyzed her information. Using such a lens effectively represents the best of feminist scholarship and this volume, with the exception of the epilogue, continues that tradition. But the epilogue needs to be more critical. Rather than simply asserting that abortion must remain legal and lamenting the ascendancy of the New Right, I would have liked a more nuanced discussion of why legality per se remains so central in the wake of an analysis that points to the agency of women when abortion was illegal, that brilliantly demonstrates the parallels in the practice of abortion at the end of the 19th and 20th centuries, that forcefully makes the argument that law derives its meaning from its every day reality and enforcement. I do not dispute the symbolic value of abortion as a legal right. Nor do I expect any serious argument that making abortion illegal would not ultimately oppress women. But I do expect less reliance on the idea that the mere existence of a legal right improves women’s lives when the foregoing text has so aptly demonstrated that it is a far more complex reality that defines true reproductive freedom. Still, the remainder of the volume speaks for itself and is worthy of being read by those interested in the impact of law on society as well as those interested in abortion specifically and the status of women more generally. -- Salon\ \ \ \ \ \ Kirkus ReviewsA solidly grounded, sophisticated history of illegal abortion in the US. Reagan, a historian specializing in medicine and women's studies (University of Illinois), persuasively argues that, even during periods when legal and medical systems and religious beliefs have proscribed abortion, it has been an important, and often accepted, part of women's lives. She uses a range of materials, including government documents and the popular press, to prove her case but focuses her research primarily on legal and medical records. Reagan combines her analysis of nationwide trends in abortion practice with a study focusing on Chicago. By 1880, abortion was illegal throughout the U.S. Nonetheless, through 1940 it was a common medical practice that enjoyed widespread social acceptance. In the '40s the states, in cooperation with the medical establishment, began to enforce abortion laws more vigilantly. It was during this period that most of the pre-Roe 'back alley' abortions took place. The movement to legalize abortion began in the mid-1950s, first at the initiative of a few doctors, later gaining momentum and ideological fervor with the rise of the Second Wave of feminism in the late 1960s. Reagan goes beyond the genesis of written laws, focusing on women's attitudes toward abortion and their concrete experiences of it. She points out that abortion has often been seen as a result of women's victimization (a callous man uses a woman for his own sexual pleasure and then abandons her). Reagan acknowledges that this happens but points out that, across class lines and time periods, many women have actively wanted to separate sex from procreation. She also skillfully connects abortion to larger events andtendencies in history; the Depression, for example, greatly increased the economic need for abortion. Of enduring interest to anyone concerned with the history of women's rights, sexual mores, and the relationship of law and policy to ordinary lives.\ \