Making Abortion Illegal

Abortion up to the fourth or fifth month was legal in the United States from the founding of the country until the 1860s. In fact, the term “abortion” really only applied to ending a pregnancy after quickening, around the fourth month at the earliest, when one might feel the fetus move.

What we today call abortion was regarded then as “unblocking a period,” and peddlers would sell elixirs or “lunar pills” to “restore your balance.” It’s likely these didn’t work very well — it’s not so easy to cause a miscarriage with herbs — but physical intervention did work. In New York, those with money could get an abortion from Madame Restell at her mansion on Fifth Avenue. In small towns, midwives and wise women would fix you up. The abortion laws that did exist were designed to punish those who caused a death through lousy technique or bad luck.

The initial crackdown was led by “regular” doctors who were trying to establish themselves as a profession in competition with the midwives and “irregulars,” who provided most primary care. Starting in the 1850s, doctors inveighed against judges, newspapers, and clergy, all of whom thought abortion before quickening was unproblematic.

These doctors argued that embryonic development was one continuous process, with no leap at the time of quickening. But they found it extremely hard to convince women that abortions were bad; it didn’t match women’s experience of early miscarriages and stopped-up periods that could be started again. Their common sense agreed with Aristotle and Thomas Aquinas: A vegetable soul gave way to an animal soul and, only later, to a rational soul.

Despite the criticism by doctors, Protestant clergy were notably resistant to denouncing abortion — they feared losing congregants if they came out against the common practice. Even the Catholic Church didn’t fully come out against abortion until 1869, in a papal encyclical that coincided with a drastic reduction in the birth rate in France, then the largest Catholic country.

The doctors’ campaign, too, coincided with the increased use of abortion by married women to control family size, and a resulting plunge in the birth rate, from eight births per woman in 1800 to four per woman in 1900. This fact allowed doctors to get traction, as they hammered on fears that Catholic immigrants would take over. They got a few states to pass laws, but their crowning victory came federally when the 1873 Comstock Law completely shut down any distribution of information about abortion, contraception, or reproduction.

Abortionists who advertised were arrested, booksellers were put on trial for selling medical texts. Piles of confiscated birth control devices, pills, medical equipment, and “obscene” books were burned under the direction of Anthony Comstock, America’s Prude-in-Chief. Madame Restell killed herself rather than being sent to prison.

Still, it was tough going for antiabortion forces. Reagan’s study focuses on Chicago, where abortions were widely available from immigrant midwives. Even prominent doctors, who liked to denounce abortion in public, were squeamish about reporting their colleagues, and often acceded to women’s demands for abortion.

Doctors Made Snitches

In Reagan’s account, the organized crackdown intensified between 1900 and 1920. Up until then, police generally got involved only if someone died. But by 1900, it was becoming more common to be hospitalized for abortion complications. Most of these patients would eventually die, as medicine had little to offer yet. But hospitalization did provide police the opportunity to extract “dying declarations” from patients, which could then be introduced in court. This was so common that hospitals created blank forms for the purpose. Even if patients had a chance to survive, police pressured doctors to tell them they were dying so they would name their abortionist.

While some doctors eagerly turned in their patients, others had to be compelled by legal threats. Reagan details cases against doctors in New York, Boston, and Peoria who were indicted to force compliance — one as an accessory to murder. Some lost their licenses despite being acquitted.

These legal threats soon drove more sinister tactics. Doctors counseled each other to deny treatment to patients until they named their abortionist. Despite bullying and medical torture, Reagan cites estimates that only four in ten women gave up this information.

The American Medical Association is headquartered in Chicago, so Reagan has a front row seat as doctors sabotage their independence by bringing down reactionary policies on their patients. Their initial demand for a crackdown on abortion eventually forced them to torture and lie to their patients to protect their own hides.

According to Reagan, the first abortion clampdown ended around 1920, as doctors redirected their efforts to trying to stamp out the growing birth control movement, as well as trying to quash the Sheppard-Towner Act, which in 1921, dedicated federal funds to reducing maternal and infant mortality, which they viewed as federal encroachment on their professional prerogatives — an outcome they apparently viewed as worse than mothers and babies dying at high rates.

By the 1950s, doctors were demanding clear guidelines on what constituted grounds for an abortion for reasons of life or health. The resulting hospital committee system ended up second-guessing their judgments and threatening their licenses. Now, opposition to national health insurance has left them the peons of medical conglomerates.  While many brave physicians bucked these trends, it’s hard to feel sorry for the leaders of the profession.

Baby Boom

Although it was not at all obvious at the time, the abortion reform and second-wave feminist movements of the 1960s emerged during the worst crackdown on abortion rights. Doctors who had practiced fairly openly during the Depression, providing safe abortion care to thousands, were tried and jailed.

By the 1960s, many skilled practitioners had been driven from the field, replaced by mercenaries and hacks. This pushed prices up — they tripled between 1940 and 1955. Police had to be paid off, adding to the expense. In Chicago, abortion was largely controlled by the mob.

The death rate jumped alarmingly. Hospitalizations in Chicago rose from fifty to five thousand annually. Though antibiotics and blood transfusions now kept many from dying, the national death rate rose to around five thousand a year. Cops and compliant doctors withheld treatment until the women gave information. To shore up security against these tactics, clandestine practitioners instituted terrifying measures, picking up patients on prearranged street corners, blindfolding, and sometimes drugging them. They performed the operation in disguise, then they dumped the patient back where she started in what felt more like a kidnapping than a medical procedure. Women occasionally reported being raped.

Sentenced for Getting an Abortion

Reagan makes clear that while clandestine abortions with pills are much safer than the methods used in previous illegal periods, our legal system has become much more dangerous.

During previous crackdowns, women had nasty tangles with the police but they were generally not charged or tried for getting abortions. That started to happen in the late 1960s, according to Reagan, as a backlash against the women’s liberation movement.

One example is Shirley Wheeler in Florida, who was convicted of getting an abortion in 1971. She got an infection and went to the hospital, where she was interrogated by police. “We, of course, could have made some arrangements if she had turned state’s evidence against the abortionist,” the prosecutor told the New York Times dolefully, “but she told us it was none of our business.”

Wheeler’s “sentence” was to move back in with her parents, or marry her boyfriend. This would be punishment enough! But Wheeler’s sentence, and the relatively short sentences faced by doctors at the height of the postwar crackdown, provide an important contrast to today, a point which Reagan makes in her new preface: New antiabortion laws tend to treat the fetus as a person and abortion as murder, and they interlock with the general US trend of long, punitive prison terms unmatched in other countries. As a result, the United States, with 4 percent of world population, has 33 percent of the world’s female prisoners.

As a result of these trends, around twenty-five women have been prosecuted in the United States for their miscarriages over the last two decades. Until she won a reprieve, Purvi Patel was sentenced to twenty years in Indiana for concealing her late miscarriage. Jennie McCormack in Idaho used abortion pills and was sentenced to five years. She appealed and managed to get her conviction and the law overturned. But these cases are just a foretaste of the avalanche of criminalization and misery the Supreme Court could trigger.

Ruling-Class Requirements

Why is abortion becoming illegal again? Certainly, we can blame the timidity and “respectability” that has characterized the liberal takeover of women’s liberation after its initial successes. But we must, too, account for the underlying requirements of US capitalism, both in the partial victory represented by the Roe v. Wade decision in 1973, and in our subsequent defeats.

Reagan argues that abortion crackdowns are a reaction to women’s moves toward independence and that they are designed to control women’s sexuality. But the crackdowns correlate more closely with the ruling class’s stated desire for higher birth rates. Record-low birth rates in the 1860s, 1930s, and again in the early twenty-first century have all been followed by crackdowns on abortion and contraception. Because birth rates go down when women fight their way out of their assigned reproductive roles to do other things, these two phenomena sometimes coincide.

But they didn’t coincide in the 1960s. When feminists were at their most militant, they succeeded in getting abortion legalized nationally. In this case, other factors were at play: low unemployment meant employers were eager for women workers unencumbered by pregnancy and children. But the key factor that split the ruling class and gave feminists a chance to win was the high birth rate: there was bipartisan agreement that it was to blame for welfare costs, crowding, crime, and rebellion.

The rise of antiabortion sentiment in the mid-1970s tracks the sharp drop in the birth rate after the long postwar baby boom, from 3.65 children per woman in 1960 to 1.77 in 1975. The most immediate backlash against Roe — the bipartisan 1975 Hyde Amendment, supported by Jimmy Carter — blocked low-waged and unemployed women getting abortions through Medicaid, which looks a lot like a class attack aimed at extracting the valuable labor of bearing and rearing children from those with the least political power.

Abortion Pills Change Things

In response to the Supreme Court’s vote to overturn abortion rights, the states are going in one of two different directions. While thirteen states will instantly ban abortion if the Supreme Court allows it, California, Illinois, New York, and many others have codified legal abortion. Connecticut and New York just passed laws that abortion providers cannot be extradited by more repressive states.

Feminist groups have been distributing information on how to get abortion pills. Plan C has a report card on various ordering options, and trains “ambassadors of information.” Watch for their stickers in bathroom stalls.

Europe-based Aid Access sends pills by request to repressive US states for $110, despite the Food and Drug Administration (FDA) ordering them to stop. Shout Your Abortion militants took abortion pills outside the Supreme Court abortion hearings December 1, defying the law and demonstrating the safety of the pills. National Women’s Liberation is collecting pledges to “aid and abet abortion” while researchers are running studies to build a case to the FDA that abortion pills could be provided over the counter.

In a step forward, the FDA recently removed some of the red tape around abortion pills. It is now possible to do a phone consultation, for example, with Abortion on Demand, and receive pills by post overnight for $239. They can’t send them to a state where it’s illegal, of course. But all this does open up possibilities. Do you have a friend in a legal state? Could they mail you a small package?