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

By Leslie J. Reagan

The definitive history of abortion in the United States, with a new preface that equips readers for what’s to come.
 
When Abortion Was a Crime is the must-read book on abortion history. Originally published ahead of the thirtieth anniversary of Roe v. Wade, this award-winning study was the first to examine the entire period during which abortion was illegal in the United States, beginning in the mid-nineteenth century and ending with that monumental case in 1973. When Abortion Was a Crime is filled with intimate stories and nuanced analysis, demonstrating how abortion was criminalized and policed—and how millions of women sought abortions regardless of the law. With this edition, Leslie J. Reagan provides a new preface that addresses the dangerous and ongoing threats to abortion access across the country, and the precarity of our current moment.
 
While abortions have typically been portrayed as grim "back alley" operations, this deeply researched history confirms that many abortion providers—including physicians—practiced openly and safely, despite prohibitions by the state and the American Medical Association. Women could find cooperative and reliable practitioners; but prosecution, public humiliation, loss of privacy, and inferior medical care were a constant threat. Reagan's analysis of previously untapped sources, including inquest records and trial transcripts, shows the fragility of patient rights and raises provocative questions about the relationship between medicine and law. With the right to abortion increasingly under attack, this book remains the definitive history of abortion in the United States, offering vital lessons for every American concerned with health care, civil liberties, and personal and sexual freedom.

• Language: English
• Publisher: University of California Press
• Release date: Feb 22, 2022
• ISBN: 9780520387423

Book preview

WHEN ABORTION WAS A CRIME

WHEN ABORTION WAS A CRIME

WOMEN, MEDICINE, AND LAW IN THE UNITED STATES, 1867–1973

LESLIE J. REAGAN

With a New Preface

UC Logo

UNIVERSITY OF CALIFORNIA PRESS

University of California Press

Oakland, California

© 1997, 2022 by The Regents of the University of California

First paperback printing 1998

ISBN 978-0-520-38741-6 (pbk. : alk. paper)

ISBN 978-0-520-38742-3 (ebook)

Library of Congress Control Number: 96022568

Manufactured in the United States of America

31  30  29  28  27  26  25  24  23  22

10  9  8  7  6  5  4  3  2  1

To reproductive rights activists

and

To my teachers and students, past and present.

Contents

LIST OF ILLUSTRATIONS

ACKNOWLEDGMENTS

PREFACE TO 2022 EDITION

NOTES TO PREFACE TO 2022 EDITION

SELECTED BIBLIOGRAPHY

Introduction

1 An Open Secret

2 Private Practices

3 Antiabortion Campaigns, Private and Public

4 Interrogations and Investigations

5 Expansion and Specialization

6 Raids and Rules

7 Repercussions

8 Radicalization of Reform

Epilogue: Post-Roe, Post-Casey

NOTE ON SOURCES

LIST OF ABBREVIATIONS

NOTES

BIBLIOGRAPHY

INDEX

Illustrations

Plates

1. It Comes down the Ages

2. Perforation of the uterus

3. One of the Reputable Physicians

4. One of the Abortionists

5. The Quack House, the Victim, the Agency

6. The D.A.’s Peeping Toms

Figures

1. Coroner’s investigations of abortion-related deaths, Chicago, 1878–1931

2. Therapeutic abortion cases, New York City, 1943–1962

3. Therapeutic abortion, by race, New York City, 1943–1962

4. Abortion cases admitted annually to Cook County Hospital, 1921–1963

5. Women’s deaths resulting from abortion, New York City, 1951–1962

6. Deaths resulting from abortion, by race, New York City, 1951–1962

7. Percent of total maternal mortality resulting from abortion, 1927–1962

Acknowledgments

It is a pleasure to take a few moments and remember all of the enthusiastic support and assistance that I received as I worked on this book. Friends, family, teachers, colleagues, and many others have sustained me through the process.

I was fortunate to be part of the women’s history program at the University of Wisconsin at Madison. This program, founded by Gerda Lerner, brought together an energetic and creative group of graduate students and faculty. Two excellent advisors, Judith Walzer Leavitt and Linda Gordon, encouraged and challenged me every step of the way. I am grateful for their guidance and friendship. I appreciate too the counsel of Gerda Lerner, Hendrik Hartog, Ronald Numbers, Vanessa Northington Gamble, and Carl Kaestle. Morris Vogel, Steve Stern, and the late Tom Shick encouraged me at an early stage.

Graduate students in the Wisconsin history department created an invigorating intellectual climate, which nurtured me and this project. Furthermore, their commitment to both outstanding scholarship and progressive activism is one I cherish. For all of their support, I thank Kathleen Brown, Eve Fine, Joyce Follet, Colin Gordon, Roger Horowitz, Nancy Isenberg, Marie Laberge, Nancy MacLean, Earl Mulderink, Edward Pearson, Leslie Schwalm, Doris Stormoen, and Susan Smith. I am particularly grateful to Kathy Brown, Joyce Follet, Leslie Schwalm, and Mary Odem, who remain engaged with my work, even by long distance telephone and often on short notice.

I appreciate the comments and encouragement of Allan Brandt, Anna Clark, Mary Fissell, Judith R. Walkowitz, and Danny Walkowitz. I am grateful to my colleagues in the Social History Group at the University of Illinois and to Diane Gottheil, Karen Hewitt, Evan Melhado, Jean Rhodes, Dorothee Schneider, Paula Treichler, Kathy Oberdeck, and William Munro for their suggestions on various phases of this project. I thank my research assistants, Lynne Curry, Mark Hemphill, and Rose Holz, for aiding me in the final stages of research.

Of critical importance are the librarians and archivists who facilitated my research. I thank Bob Bailey and Elaine Shemoney Evans at the Illinois State Archives, Lyle Benedict at the Municipal Reference Collection in the Chicago Public Library, Micaela Sullivan-Fowler, formerly at the American Medical Association, and Cathy Kurnyta, formerly at the Cook County Medical Examiner’s Office. Jackie Jackson gave me a delightful home away from home when I did research in Springfield. Kate Spelman graciously offered legal advice. I thank the University of Illinois staff in history and medicine for their timely and friendly assistance. Editors and anonymous reviewers at the University of California Press, the Bulletin of the History of Medicine, and the Journal of American History have all offered helpful advice to make this book a better one. Jim Clark, Eileen McWilliam, Dore Brown, and Carolyn Hill at the University of California Press have been especially encouraging.

Many women and men, from clerks to professionals, volunteered their own abortion stories when they learned of my project and told me firmly that this was a book we needed. Their belief in this project has always been important to me. I thank Susan Alexander and Sybille Fritzsche for sharing their memories of their legal effort to overturn the Illinois abortion law. It has been a pleasure getting to know them. I thank Peter Fritzsche for introducing me to his mother.

I have had the good fortune to have been granted vital financial support for the research and writing of this book. I am grateful to the Department of the History of Medicine of the University of Wisconsin Medical School for the Maurice L. Richardson Fellowships, the University of Wisconsin, Madison History Department, the American Bar Foundation, and the Institute for Legal Studies at the University of Wisconsin, Madison for crucial support as a graduate student. The Institute of the History of Medicine and the Department of History at Johns Hopkins University provided postdoctoral support. Since coming to the University of Illinois at Urbana-Champaign, I have received funding for research assistance from the UIUC Research Board; a semester as a Fellow at the Center for Advanced Study gave me time to write; and both of my departments, the Department of History and the Medical Humanities and Social Sciences Program in the College of Medicine, graciously granted leave to research, write, and complete my book. A National Institutes of Health, National Library of Medicine grant (grant number Roi LM05753), supported the final revisions of the manuscript. This book’s contents do not necessarily represent the official views of the National Library of Medicine.

The support of family has been special. I deeply appreciate the interest that all members of all sides of my diverse family—Gardners, Reagans, Schneiders, Edwards, Dejarnatt, Goodman, Kanefield, Spelman, and Brillinger—have shown in my book. Recently, it has been a pleasure to talk of the delights and difficulties of writing with Billy, David, Mom, and Dad. Zola and Irv helped me by sharing their thoughts. My late grandparents, Mercedes Philip Gardner and William Irving Gardner, had an abiding belief in the importance of higher education and conveyed their belief in me and my chosen intellectual challenges. I am sorry they cannot see this book.

I met Daniel Schneider as I was about to head for Chicago to do research. He has always been interested in this project, from hearing about my discoveries in crumbling legal records to discussing the book’s structure. Daniel has generously read many drafts, given excellent editorial advice, and produced all of the figures for this book. For his enthusiasm, his thoughtfulness, and his help, I am deeply grateful.

At the time that abortion was becoming legal in this country, I’m not sure that I even knew what it was, but I remember a moment in the kitchen when I asked my mom about it. Her response, though of few words, and perhaps a bit embarrassed, firmly imparted the belief that women had to be able to control their reproduction and that, sometimes, they had to be able to have abortions. That brief, dimly recalled conversation, I have since learned from my research, was like many others that mothers and daughters, friends and family members had about abortion through the twentieth century.

Preface to the 2022 Edition

The legality of abortion has always been precarious, and it is quite possible that abortion will become, again, a crime in the United States. When I first wrote this book, Roe v. Wade (1973) was the law of the land, but under attack. The legal status of abortion has changed since then, but battles continue over whether abortion should be legal at all, what conditions it should be accessible under, and whether reproductive control is, in fact, a woman’s right. Pregnant people and people involved in providing abortions will be targeted as criminals if Roe is overturned or preserved on narrow grounds. Punishment in a new era of criminal abortion will echo the policing and prosecution of the past but is likely to be even worse, because of the many post-Roe state laws that name the fetus a person and make pregnancy loss and abortion into crimes of manslaughter or murder. Arrests and incarceration on a massive scale can be expected. ¹ Other suffering too, as well as resistance. The history of abortion that I tell here is more relevant than ever for understanding the present and for considering the future.

This book asks, What happened when abortion was made a crime? Abortion was a common practice used by seventeenth-, eighteenth-, and nineteenth-century American women to manage their reproduction. What did it mean to criminalize what had been legal under common law, a home remedy? What did it mean for women? ² For abortion providers, doctors, midwives, and others? And how were these new laws enforced? When Abortion Was a Crime was the first book to investigate these questions and track both abortion practices and law enforcement for the entire century that abortion was illegal, from the 1860s to 1973. It reveals women’s reproductive experiences, decisions, and power beginning in the colonial era, in the 1700s, and through the century when abortion was a crime, the Roe v. Wade decision, and its immediate aftermath. When Abortion Was a Crime demonstrates how nineteenth-century organized medicine pushed to make abortion a crime and to give doctors the power to monitor women’s bodies, behavior, and adherence to gender and sexual norms. Physicians became part of law enforcement and testified in court cases brought against abortion providers. Yet, as this book also reveals, doctors felt competing pressures and loyalties as the organized medical profession insisted that abortion was immoral and unprofessional at the same time that patients expected abortions. Medical professionals were always deeply involved in the practice of abortion. Many provided illegal abortions, while others worked to punish both women who sought abortions and their providers.

The criminalization of abortion in the nineteenth century was rooted in the anxieties of upper-class white men who resented women’s political engagement and who feared losing political, economic, and cultural power to two specific groups: people of color (namely, Native Americans, Chinese migrants, and newly freed Black people) and European Catholic migrants. ³ To maintain their supremacy, white elites encouraged pronatalist policies and outlawed abortion in order to expand the community of people like themselves (upper-class white Anglo-Saxon Protestants). Compelling middle-class white women to have more babies in the service of maintaining white elite political power was the goal. But the new laws did not stop abortion, neither among the most well-to-do nor among the working classes and poor. Women of every class, racial identity, nationality, religion, and marital status used abortion.

Once the states made abortion illegal, stopping abortion became the job of law enforcement. This book uncovers the myriad ways that state officials—prosecutors, police, coroners, and state agencies—investigated illegal abortion, worked to suppress it, and punished the people involved. For more than a century, from the 1860s through 1973, abortion was a crime. All state criminal abortion laws penalized both abortion providers and individuals who assisted or offered information about abortion; many sanctioned women who had abortions as well. While the laws differed little, the methods and intensity of law enforcement changed over time. Elections and newspaper exposés could inspire vigorous law enforcement, sending police to question women on their deathbeds or to raid abortion practices in the middle of an operation and make arrests. At other times, particularly during the Great Depression in the 1930s, state authorities curtailed their policing and largely overlooked the practice. Law enforcement shifted with changes in the economy, the organization of medicine, and the political climate.

By the 1950s, a two-tiered system of illegal abortion existed, defined by race and class. Wealthy women—virtually all white—could sometimes obtain legal, therapeutic abortions performed by their own private doctors in hospitals or referrals to safe illegal abortion providers, often M.D.s. In contrast, poor and nonwhite women almost never received safe, legal abortions in hospitals. Instead, they entered the illegal underworld to find abortionists, many of whom were skillful and safe. Some evidence suggests that Black women in segregated neighborhoods may have found abortionists more easily than white women in general because the Black community was very open about it. Black women in Pennsylvania and South Carolina, for instance, had their own networks of Black providers, most of whom offered abortion and other health services at home. ⁴

Still, inept and dangerous practitioners also performed abortions underground, and women without means frequently resorted to self-induced abortions. The divergent abortion-related mortality rates between Black and white women exposed the inequities. Abortion mortality from nonhospital abortions in Georgia, public health analysts observed in 1971, is becoming increasingly a black health problem. Racism and poverty produced a horrific statistic in the state: Pregnant black teenagers are 11 times more likely to die from nonhospital abortions than pregnant white teenagers. ⁵ In New York City, deaths due to abortion were nearly four times higher among Black and Puerto Rican women than among white women. The devastating health effects resulting from the criminalization of abortion cannot be counted in maternal deaths alone, though. Hundreds of thousands more women suffered profuse bleeding for days and weeks on end; punctures in the uterus, stomach, or intestines; infections; and septic shock.

After Roe: The New Antiabortion Movement

For more than sixty years, since the earliest medico-legal discussions about reforming abortion law in the late 1950s, an organized backlash has fought to restrict and restigmatize abortion. Individual Catholics and the Catholic Church initially led and nurtured the opposition. State investigations and threats to the licensure of some of the most prominent specialists in gynecology and obstetrics in the 1960s vividly brought the developing antiabortion movement to public attention. ⁶ Violent rhetoric equating abortion with murder and Nazism developed early, a language now commonplace in the antiabortion movement and in American culture.

The rise of the New Right and the accompanying shift in the identity of the Republican Party are critical pieces of the legal history of abortion since Roe. In the 1970s, the Republicans, starting with Richard Nixon’s 1972 reelection campaign, forged a new identity as the party that emphasized family values, meaning dedication to heterosexuality, marriage, and the stay-at-home mom and opposition to abortion, homosexuality, sex education, and divorce. This agenda united conservative activists with a new coalition of white Christian evangelicals, Catholics, and Mormons—religious groups that had historically distrusted one another became allies in the struggle against social and cultural changes they perceived as threatening. The New Right coalition’s attacks on abortion, feminism, and all forms of sexual freedom swept Ronald Reagan into the presidency in 1980. ⁷

The New Right did not focus on sex alone, though. It was built on white resentment and white supremacy, bridges from the Old Right to the New. Resistance to racial integration of public schools was key. Indeed, white activists who fought against busing became anti-abortion leaders in Detroit and Boston; outrage at threats to the tax-exempt status of (white) Catholic and Christian schools for failing to integrate mobilized both Northern and Southern whites. Meanwhile, white women like Anita Bryant of Florida and Alice Moore of West Virginia represented themselves as Christian mothers who opposed gay rights, sex education, and abortion in order to protect our children. Linking busing and law and order (Nixon-era code for blaming Black people for crime) to abortion brought political dividends to the Republican Party. As its organizers hoped, many Southern whites and Northern white Catholics who had formerly voted Democratic switched parties and voted for Reagan. ⁸

Although the Republican Party increasingly supported a vigorous antiabortion agenda, both major political parties have participated in restricting abortion. The 1976 passage of the Hyde Amendment, which prohibited federal funding of abortion, with narrow exceptions for reasons of rape, incest, or health, epitomized the bipartisan consensus. The Hyde Amendment meant that neither poor women who relied on Medicaid for their health care nor women in the military nor other federal employees had insurance coverage for abortion. Upheld by the Supreme Court, it enshrined a two-tier, class- and race-based abortion system that allowed women who could afford it to choose abortion and made it difficult for low-income women to do the same. ⁹

As the Republican Party with the New Right identified Roe with changes in gender, sexuality, and race, the right-to-life and pro-life movements gave abortion and the fetus new meanings. Abortion became murder and the fetus an innocent child. ¹⁰ The most significant ideological work of the antiabortion movement was the separation in American cultural and legal thought of both the pregnant woman from her own pregnancy and the developing fetus from the pregnant body. This made the embryo/fetus into an individual person with its own interests, rights, and life completely separate from a woman’s pregnant body. Fetal images proliferated in American culture. The pro-life movement blew up photographs of bloody, dismembered body parts, purportedly fetuses, for protest signs and billboards, and made them their ubiquitous icons. The antiabortion movement invested the fetus, generally imagined as male, with political, legal, and moral meanings. The fetus by himself, in the pro-life formulation, had legal rights as a citizen and human being, felt pain, and had moral status as an innocent, a Christian concept that values innocence of sin and (sexual) knowledge. The fetus even had a mind and voice of his own, which he most often used to direct and correct his mother—ordering meals, policing her drug use, and insisting that she not murder him by having an abortion. The fetus sold cars and, in one popular pro-life cartoon, even pulled out a gun. ¹¹

The mythical independent, thinking and speaking fetus provided a puppet with which others—religious leaders, conservative men, advertisers—could cajole and command as if they were themselves innocents. Speaking through the fetus masked (or attempted to) the true speakers and their dedication to white, male, and Christian supremacy and their fundamental opposition to women’s freedom. Indeed, speaking as a fetus made sense within the pro-life world, which cultivated identification with the fetus. The fetus was deeply knit into personal life through fetal dolls, funerals, and stories. When speaking of the peril of abortion to the fetus, pro-life proponents see themselves as threatened, as well as white Christianity. ¹²

The pro-life movement spawned new techniques of harassment and violence toward abortion patients and providers. Activists picketed abortion clinics; physically blocked patients from reaching clinic doors; subjected patients and providers to name calling, threats, and prayers; followed patients home; and even physically assaulted them. Since the mid-1980s, most abortion clinics have endured weekly demonstrations—daily at many. The shift to the apocalyptic and violent language of the pro-life movement developed within an increasingly conservative context in which militias and white-supremacist groups multiplied. The new abortion warrior, as Carol Mason shows, embraced guerilla legislation and violent tactics, which led to domestic terrorism: the bombing of clinics and assassinations of doctors and others who provided abortions. ¹³

The antiabortion movement also reworked history and science by painting legal abortion as a threat to women’s own lives. Videos, pamphlets, websites, and sidewalk counselors, who verbally and physically harassed clinic patients, claimed that abortion caused infertility and breast cancer and would inevitably damage women’s psyches. All propaganda and lies. Legal abortion is safe, safer than childbirth. Furthermore, the legalization of abortion virtually eliminated abortion-related septic infections and deaths in the United States. The vast majority of women who had abortions felt relief, not regret. Researchers and medical experts know that abortion does not increase breast cancer rates or infertility. High-quality research, the National Academies of Sciences, Engineering, and Medicine concluded, shows that having an abortion does not increase a woman’s risk of secondary infertility, . . . breast cancer, or mental health disorders (depression, anxiety, and PTSD). ¹⁴ The antiabortion movement has produced and pushed disinformation for decades to deliberately frighten and confuse individuals considering abortions and the general public. That effort includes crisis pregnancy centers: fake clinics to which pro-life activists lure unsuspecting women by befriending them and offering pregnancy tests. When the tests have come back positive, such activists have withheld or lied about the results so that when the pregnant woman does seek an abortion it’s too late or more expensive and difficult to procure. ¹⁵

The women’s and civil rights movements resisted the antiabortion backlash on the ground and in the courts as they simultaneously pushed for expanded reproductive rights and health care. Local activists have raised funds to help women pay for their procedures and served as escorts for patients who face a gauntlet of protesters as they enter and leave abortion clinics, while national organizations have focused primarily on challenging the constitutionality of thousands of anti-abortion statutes. Beginning in the 1980s, women of color created a reproductive justice movement that shifted the focus away from abortion only. As Loretta Ross pointed out, The narrow agenda of [the majority-white abortion rights] movement alienates women of color. We cannot define our men or our church as the enemy. . . . [We] have a different history. ¹⁶ Reproductive justice emerged from a long history of Black women’s health activism and 1980s organizing by and for Black women and other women of color. The First National Conference on Black Women’s Health Issues, held in 1983 at Spelman College in Atlanta, began by asking Black women about their lives. Surprising organizers, two thousand Black women came to the event. And they talked. When sisters take their shoes off and start talking about what’s happening, the first thing we cry about is violence. The violence in our lives, Byllye Avery reported. Next is being mothers too early and too long. After that first stunning meeting, Avery and several others cofounded the National Black Women’s Health Project (NBWHP; now the Black Women’s Health Imperative [BWHI]), a network of grassroots self-help groups that focused on healing, health screening, and bringing mothers and daughters together to talk about sex (and birth control). Four years later, Loretta Ross and Judy Logan White convened the Conference on Women of Color and Reproductive Rights at Howard University in Washington, D.C., which brought together a coalition of regional grassroots groups, whose members included Native American women from South Dakota and Latinas from Hartford, Connecticut. Soon thereafter, Ross left the National Organization for Women (NOW) and founded SisterSong, the Women of Color Reproductive Justice Collective. ¹⁷

The BWHI, SisterSong, and other reproductive justice groups reject the exclusive focus on abortion and the pro-choice slogans of the large, mainstream, primarily white organizations such as NOW, NARAL (since 1994 the National Abortion and Reproductive Rights Action League), and Planned Parenthood. Women of color and low-income women, they point out, often experience no choice in their reproductive experiences, because of coercion, racial discrimination, and economic constraints. Choice is a privilege of affluent white women only. Instead, reproductive justice advocates address the daily lives of women of color and struggle against American racism and poverty alongside fighting for reproductive rights. They demand the right to have children as much as the right to not have children. Black, indigenous, Latina, and Asian American women are well aware that the right to have children is not automatically granted to them. Indeed, their right to children and family is often denied, as the histories of coercive sterilization and population control programs make plain. Reproductive justice groups like the BWHI, the Mother’s Milk Project led by Mohawk women, Asian and Pacific Islanders for Reproductive Health, and the Organizatión Nacional de la Salud de la Mujer Latina / National Latina Health Organization thus address an extensive range of reproductive health care issues, including childbirth, prenatal care, infant mortality, breastfeeding, ending coercive sterilization and medical treatment, HIV-AIDS, breast cancer, and access to birth control and abortion, as well as housing, children’s education, and incarceration. The intersectionality of RJ, SisterSong asserts, is both an opportunity and a call to come together as one movement with the power to win freedom for all oppressed people. As Monica Simpson, the SisterSong executive director, succinctly put it, It’s about liberation. ¹⁸

The 1973 Roe v. Wade decision, and the continuing backlash against it, placed the U.S. Supreme Court at the center of abortion debates. Today the judiciary wields enormous power over the conditions of abortion, and Americans have become accustomed to awaiting judgments from the Court regarding abortion. Every year since Roe, cities, states, and Congress have passed measures to restrict or ban abortion, reaching high points in 1973, 2011, and 2021. ¹⁹ Since the 1992 Planned Parenthood v. Casey decision, the Court has permitted a growing number of restrictions, including parental notification, waiting periods, medically unnecessary ultrasound exams, and forced reading by doctors of state-written antiabortion scripts to patients considering or receiving abortions. Mandatory vaginal exams are deliberately humiliating state-forced sexual assaults; they also mimic the coercive examinations of women’s bodies for evidence of criminal abortion that occurred in the pre-Roe era. ²⁰ Many of the restrictive regulations include provisions putting into law the fiction that fertilized eggs, embryos, and fetuses, still inside the pregnant woman’s body, are already separate persons with independent rights, according to an in-depth analysis of federal, state, and local statutes. In addition, 39 states have criminal laws giving fertilized eggs, embryos, and fetuses the status of separate crime victim. Tens of thousands of laws on the books but not in effect because of their unconstitutionality will be immediately enforceable if Roe is overturned and will expose untold numbers of people to prosecution, some with penalties that include life imprisonment and capital punishment. ²¹

With the appointment of three new justices by the Republican president Donald Trump, who had promised to appoint antiabortion judges, the Court moved right, shifting to a 6-3 conservative majority. ²² Anticipating that a more conservative Supreme Court would overturn Roe v. Wade, several states moved to give it the opportunity by enacting unconstitutional abortion bans. ²³ When the newly constituted Supreme Court agreed in 2021 to review a Mississippi case that two federal appellate courts had already found unconstitutional, it set up the possibility of overturning nearly fifty years of precedent. At issue was a law banning abortion at fifteen weeks, prior to fetal viability. The rejection of a state right to ban abortion in the first trimester of pregnancy, before viability, is a key element of Roe that the Court has upheld repeatedly even as it whittled away other features of the 1973 decision. ²⁴ Reproductive rights advocates and abortion opponents agreed that the new Court might overturn Roe, thus allowing individual states to again criminalize abortion. Alternatively, the Court could permit new restrictions while claiming to uphold Roe on such narrow grounds that it is effectively gutted. If the Court allows new restrictions, such as permitting abortion only in cases when pregnancy threatens a woman’s health or life or for reasons of rape, then, in truth, Roe will be obliterated and abortion criminalized as never before: even when abortion was a crime, abortions were legal for these types of reasons.

As a statement from the Center for Reproductive Rights pointed out, Over the decades since the Supreme Court first held that the U.S. Constitution protects the right to abortion, the Court has recognized that the right is meaningless if restrictions dismantle access. However, abortion opponents continue to attack abortion access and rights in their quest to overturn precedent. . . . Yet, the Constitution has not changed. . . . The only things that may have changed are the views of those who are confirmed to sit on the federal courts. ²⁵

When Texas banned abortion after six weeks, it exemplified the type of severe measures likely to be passed in other cities and states hostile to reproductive rights whether or not Roe is overturned. In their deceptively named heartbeat bill, Texas legislators call upon a private army of antiabortion attorneys and activists to enforce the ban on abortion at six weeks, a point so early that most women don’t yet know they are pregnant. The law invites citizens, rather than state officials, to bring suits against anyone who they believe has either performed an abortion after six weeks or assisted someone who has sought or intended to seek such a procedure. ²⁶ The state of Texas has thus granted members of the public a mandate to investigate, collect evidence, and initiate civil suits against anyone they suspect of breaking the ban. Successful plaintiffs will be awarded a minimum judgment of $10,000 plus attorney fees, a serious threat to abortion providers and many others. Eight hundred Texas judges and attorneys implore[d] the state legislature to vote the bill down, stating that it subverts the foundations of our judicial system . . . [and] ruptures basic notions of fairness and liberty in a democratic society, but to no avail. ²⁷ The statute could easily apply to acts such as sharing physicians’ names and phone numbers, giving rides to appointments, or helping pay for procedures. Friends, relatives, partners, and anyone who repaired a clinic building, sold medical equipment, or offered insurance to an abortion provider could be implicated and sued for aiding and abetting an abortion past six weeks. ²⁸

Laws like this one aim to put a stop to the work of feminists and abortion providers dedicated to ensuring that access and the right to safe, legal abortion are not privileges for only wealthy white women. They also endanger the national and regional abortion funds that help cover medical fees and travel costs to distant providers and the attorneys who help minors obtain a judicial bypass in states that require parental notification of abortions or who defend pregnant people prosecuted for manslaughter following a miscarriage. ²⁹ Laws that empower antiabortion activists to pursue anyone and everyone involved in abortion are designed to threaten and permanently end the grassroots efforts of organizations and individual activists committed to reproductive justice and individual civil rights. If that happens, the people who seek abortions will be imperiled.

Roe v. Wade ended in Texas on Wednesday, September 1, 2021. In an irregular maneuver, the Fifth Circuit Court of Appeals and the Supreme Court refused to enjoin the statute, thus allowing, for the first time since 1973, a ban on abortions before viability. ³⁰ Abortion procedures were still legal in Texas if they happened before six weeks, but the vast majority were made illegal at midnight, and at least 85 percent of Texas abortion patients are past the new limit. The day before the law went into effect, Texas clinics provided as many procedures as they could before midnight and started informing callers past six weeks where they could go out of state for an abortion. Antiabortionists harassed patients at the Fort Worth clinic and called in a fake fire alarm. If the providers had followed their usual schedule instead of canceling appointments and refusing to see people in need, they and anyone who assisted them or their patients past six weeks pregnancy would have been legally vulnerable. The day the law went into effect, Texas antiabortion organizations passed out flyers with names of lawyers who would help bring lawsuits. Texas Right to Life set up a website to collect tips and encourage individuals to sue. ³¹ Florida quickly introduced a bill copying the Texas one; legislators in Arkansas, Indiana, Missouri, Ohio, and other states promised to do the same. ³²

Outraged activists—teens on TikTok, hackers, and techies—immediately flooded the Texas Right to Life website with fake tips and useless data to break it and prevent the organization from suing anyone. Tipsters named Texas governor Greg Abbott and superheroes as violators. As one man who shared his program to spam the website said, it is no one’s business to know about people’s abortions. Two days after the law went into effect, the website was shut down for violating the hosting company’s rules regarding confidentiality and personal information. ³³ At least two Texas county judges signed restraining orders against Texas Right to Life and other organizations, preventing them from suing specific named attorneys and doctors, an abortion fund, and Planned Parenthood of Texas. ³⁴ Nonetheless, as of September 1, people needing abortions who were past the six-week cutoff had to acquiesce to Texas law and carry pregnancies to term against their will, induce on their own, or leave their home state to obtain an abortion. Texans who made such journeys would become reproductive rights refugees, joining a long history of women who have fled the law in their own state and traveled great distances, including across international borders, in search of abortion. ³⁵

What If Roe Is Overturned?

The importance of residency in determining accessibility to a legal provider exposes the truth that the present is already much like the pre-Roe era of criminal abortion. It resembles the past in the unequal availability of services across states and the inequitable access determined by income, age, and race. It also resembles the past in the long-distance travel required to receive an abortion, the state efforts to trap providers in violation of medical or zoning regulations, and the policing and prosecution of miscarrying women, who are treated as liars and criminals. When desperate women induce their own abortions, go to illegal practitioners, and sometimes die—as has occurred—the present very much resembles the past. For many Americans, Roe is already gone.

If the Supreme Court overturns Roe, the country will be divided, with abortion legal in nearly half of the states and illegal in the other half. Abortion would be a crime across the South and in the Plains states, regions that already look like they did in the pre-Roe era. Republican-majority state legislatures and Republican governors have enacted trigger bans, laws that ensure the immediate criminalization of abortion at all stages of pregnancy in the event that Roe is reversed. Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North and South Dakota, Oklahoma, Tennessee, Texas, and Utah—twelve states—have enacted such laws. ³⁶ Lawyers expert in the criminal legal system warn that if either the trigger bans or ‘heartbeat’ bills are permitted to go into effect, they would open the floodgates to a new wave of arrests, prosecutions, and prison sentences in many states, casting a wide net and ensnarling a wide swath of individuals, many of whom might be only peripherally linked to the abortion itself. ³⁷

The result, they say, will be mass incarceration on an unprecedented scale. The prosecuted and imprisoned will be disproportionately poor women and women of color. ³⁸ The new mass imprisonment would occur just when the federal government and some states have initiated the slow process of decarcerating people imprisoned with extremely long sentences during the war on drugs. That war, announced in 1982 by President Reagan, incarcerated Black men in particular. People held for drug offenses would be replaced with people held for abortion offenses. ³⁹

While some states acted to criminalize abortion immediately if Roe falls, others did the opposite, passing laws to ensure the legality of abortion and to expand reproductive health rights. With the support of Democratic statehouses and governors from both parties, California, Connecticut, Hawaii, Illinois, New York, Oregon, Vermont, and Washington enacted comprehensive abortion rights legislation. These states, for instance, authorized public funding for abortion, required insurance companies to cover abortion, and/or allowed nurses and other medical personnel, not just doctors, to provide abortions. ⁴⁰ In the fall of 2021, a few days before the Supreme Court began hearing arguments on Texas’s six-week abortion ban, Illinois became the first state in the country to repeal its parental notification law. As Edwin Yohnka, the ACLU’s director of communications, observed, The fact that this law was repealed by a legislature is extremely rare. Illinois governor J. B. Pritzker promised to sign the bill making the change. ⁴¹

The midwestern state led the nation in recognizing the rights of young people to make decisions about their bodies and health and hoped that other states would do the same. Concerned about the future of Roe, Pritzker said his goal was to ensure that here in Illinois, we are a beacon of hope for women who need reproductive health. Illinois already played a crucial role in providing for the reproductive rights of people in bordering states where abortion is already highly restricted or likely to be banned if Roe is overturned (Indiana, Iowa, Kentucky, Michigan, Missouri, and Wisconsin). Of this function, the governor remarked, I’m proud of our state. ⁴²

Reproductive justice and reproductive rights activists and organizations will not give up—no matter how bleak the future appears. Women of color and youth activists working to expand reproductive health care, rights, and freedom and to abolish racist and classist policies are ready to fight again for the legalization of abortion. Learning from their predecessors, activists are prepared to help people secure the abortions they need if and when abortion is recriminalized, by aiding their travel to other states and even countries where abortion is legal (as Byllye Avery did in the 1970s, sending Floridians to New York), starting underground clinical practices, and distributing pills (mifepristone, or RU-486, and misoprostol) for medication abortion. Medication abortion, the procedure used by about 40 percent of patients receiving abortions before nine weeks, is a two-step process that can be done at home. Complications are extremely rare (under 1 percent). ⁴³

People using self-managed medication abortion who tell a doctor or go to an emergency room after purchasing the pills online, however, risk prosecution: at least twenty-four have been arrested and prosecuted. Many people just say they are having a miscarriage to avoid exposure, since there is physically no difference between a miscarriage (a spontaneous abortion) and an induced abortion. ⁴⁴ The fact that doctors cannot differentiate between a miscarriage and an induced abortion led police and hospitals, as this book documents, to treat miscarrying women as criminal suspects rather than as patients in need of care. If abortion is made illegal again in the United States, police and hospitals will once more be on the lookout for lying women and will return to past practices of interrogating, threatening, and reporting patients to law enforcement. In fact, this is already happening to poor women of color. Dozens have been prosecuted for pregnancy losses, for manslaughter, concealing a birth, or delivering drugs to a minor—that is, the fetal person. Nearly all of the women prosecuted for miscarriages and stillbirths are Black or Latina. ⁴⁵

To live in the twenty-first century and see the legislative and cultural efforts to recriminalize abortion is painful, given what I learned through my research into the past. Making abortion a crime means making women who seek abortion into criminals. Making abortion a crime means making everyone involved in providing abortion into criminals. Making abortion a crime inevitably means more surveillance, prosecution, and incarceration. Black women and other people of color and poor people will be hit the hardest, both because of their disproportionate use of abortion and because of the general overpolicing of Black and Brown communities. And making abortion a crime means the resurrection of the old social stigmas and perils that surrounded the practice in the era of criminal abortion. Laws that are currently unconstitutional threaten to expand surveillance far beyond abortion clinics. The danger to Roe also jeopardizes the legality of birth control, LGBTQ rights, and gay marriage, which are likewise rooted in the constitutional right to (heteronormative) privacy elaborated in Griswold v. Connecticut (1965). ⁴⁶

The medical profession used to supervise women’s reproductive behaviors and have policy-making authority over abortion. But, as this book points out, medical practitioners never had complete control over women’s bodies in the past, nor did they all conform to or agree with the nation’s criminal abortion laws. Some doctors helped. Precisely because women of every religious group, race, nationality, class, and age pushed for their needs to be met, regardless of law or medical sermons, they changed the thinking and practices of individual physicians and, ultimately, the majority of the profession. The Court declared in Roe that the abortion decision was between a woman and her doctor, protected by a constitutionally guaranteed right of privacy. Feminists and reproductive justice activists critiqued Roe for granting decision-making authority to physicians rather than to women and for failing to address the class and racial inequities in access to abortion and health care generally. Still, they defended Roe against the onslaught of challenges by the right-wing antiabortion movement. In working to recriminalize abortion, conservatives target women’s autonomy, bodily integrity, and moral authority and seek to mandate maternity and motherhood. ⁴⁷ If the assault on Roe succeeds, legal experts warn, the nation stands on the precipice of yet another wave of overcriminalization. ⁴⁸

While reading When Abortion Was a Crime, one can’t help but be aware of imminent court decisions about abortion rights, ongoing challenges to access, and how the politics of abortion and reproduction shape the larger U.S. political environment, influencing elections, foreign policy, K-12 education, public health, and more. ⁴⁹ Most alarming is the potential escalation of policing, criminalization, and incarceration of masses of people for doing what has been safe and legal for fifty years. Equally disturbing will be the health effects of repressing abortion. Moreover, at present, as during the era of criminalized abortion, conflicts over gender, family, sexual freedom, racism, and inequality are central to American culture and politics and are thoroughly woven into the nation’s abortion battles.

Abortion, however, is an American tradition. Indeed, the historical record indicates that the acceptance of abortion has long been a community and family value. We have concrete evidence of the consequences of making abortion a crime. That is the story this book tells.

Notes

1.  Thank you to Janet Golden for helping me think about this preface. The National Association of Criminal Defense Lawyers and its Foundation for Criminal Justice have reached this conclusion as well and provide a detailed report on why and how this would happen. They point out that little attention has been given to the law enforcement implications of overturning Roe v. Wade and conclude that the nation stands at the precipice of an extraordinary new wave of criminalization (National Association of Criminal Defense Lawyers, Abortion in America: How Legislative Overreach Is Turning Reproductive Rights into Criminal Wrongs [Washington, D.C.: National Association of Criminal Defense Lawyers, 2021], 3, https://www.nacdl.org/Document/AbortioninAmericaLegOverreachCriminalizReproRights).

2.  Trans men and nonbinary people have abortions in the present, but I have used women to refer to pregnant, ovulating, and childbearing people throughout this book. Historical records identified them as women in the past; I assume that the vast majority of the people who had abortions in the past, as in the present, identified as women in terms of both biological sex and gender (cis gender), though some did not. Finally, it is people in the category women who have been the historical objects of reproductive control. Laura Briggs provides helpful, sophisticated analysis of the new language in How All Politics Became Reproductive Politics: From Welfare Reform to Foreclosure to Trump (Oakland: University of California Press, 2017), 4–5. She notes too that pregnant people doesn’t feel right, because this phrase was used by conservatives to argue against pregnancy discrimination. See also National Advocates for Pregnant Women, About Us (accessed August 19, 2021, https://www.nationaladvocatesforpregnantwomen.org/about-us/): "About Our Language: Historically, the State has targeted people identified as women for discrimination and state control based on pregnancy and their capacity for pregnancy. The overwhelming majority of people NAPW has represented and advocated for have been identified in public records as women. In addition, the research and data available on many of our issues typically employ the word women. NAPW recognizes, however, that not all people with the capacity for pregnancy identify as women and that the gender binary itself contributes to systems of discrimination and control. NAPW’s work is intended to contribute to an all-encompassing fight for civil and human rights—in other words, a true personhood movement. To that end, NAPW uses the terms ‘women,’ ‘pregnant people’ and ‘people with the capacity for pregnancy’ in recognition of the fact that all people are entitled to dignity, equality, and fairness regardless of gender identity, capacity for pregnancy, pregnancy, or stage of pregnancy including labor and delivery". See also Jack Halberstam, Trans*: A Quick and Quirky Account of Gender Variability (Oakland: University of California Press, 2018), 35–38, chap. 2, passim; Paisley Currah, Expecting Bodies: The Pregnant Man and Transgender Exclusion from the Employment Non-discrimination Act, Women’s Studies Quarterly 36:3–4 (fall-winter 2008): 330–336.

3.  Mae M. Ngai, Note on Language and Terminology, in Impossible Subjects: Illegal Aliens and the Making of Modern America, updated ed. (Princeton: Princeton University Press, 2014), 16–17.

4.  Patricia G. Miller, The Worst of Times (New York: Harper Collins, 1993), 4–5, 80–104, quotation at 91; Madeleine Ware, Cara Delay, and Beth Sundstrom, Abortion and Black Women’s Health Networks in South Carolina, 1940–70, Gender and History 32:3 (October 2020): 637–656.

5.  Roger W. Rochat, Carl W. Tyler Jr., and Albert K. Schoenbucher, An Epidemiological Analysis of Abortion in Georgia, American Journal of Public Health 61:3 (March 1971): 543–552, quotations on 544, 545, 546. They also stated, Only among unmarried black women has the number of abortion deaths not declined. . . . Unmarried black women have had the highest mortality in each five-year period. They are the only group showing no decline in abortion mortality during the past 15 years [1955–1969] (545–546).

6.  Leslie J. Reagan, Dangerous Pregnancies: Mothers, Disabilities, and Abortion in Modern America (Berkeley: University of California Press, 2010), chap. 4; Linda Greenhouse and Reva B. Siegel, "Before (and after) Roe v. Wade: New Questions about Backlash," Yale Law Journal 120:8 (June 2011): 2046–2052.

7.  Reagan, Dangerous Pregnancies, 159; Briggs, How All Politics; Gillian Frank, The Colour of the Unborn: Anti-Abortion and Anti-Bussing Politics in Michigan, United States, 1967–1973, Gender and History 26:2 (August 2014): 368–370.

8.  Frank, Colour of the Unborn, 351–378; Carol Mason, Reading Appalachia from Left to Right: Conservatives and the 1974 Kanawha County Textbook Controversy (Ithaca: Cornell University Press, 2009); Greenhouse and Siegel, "Before (and after) Roe v. Wade", 2066–2067, 2084; Briggs, How All Politics. The outrage directed by parents in 2021 at K-12 school boards and teachers and (mostly Democratic) politicians in the name of protecting their children similarly linked attacks on COVID-19 vaccines, masking during the coronavirus epidemic, the purported teaching of critical race theory, and LGBTQ rights. Moms for Liberty, founded by Tiffany Justice and Tina Descovich, both white and former school board members in Florida, coordinated local and national activism targeting school boards and generated support for Republican candidates, particularly from suburban white voters. See Amelia Nierenberg, The Conservative School Board Strategy, New York Times, October 27, 2021, https://www.nytimes.com/2021/10/27/us/the-conservative-school-board-strategy.html; Tim Craig, Moms for Liberty Has Turned ‘Parental Rights’ into a Rallying Cry for Conservative Parents, Washington Post, October 15, 2021, https://www.washingtonpost.com/national/moms-for-liberty-parents-rights/2021/10/14/bf3d9ccc-286a-iiec-883i-a3ie7b3de188_story.html; Tiffany Justice and Tina Descovich, What ‘School Board Moms Really Want—and Why Candidates Ignore Us at Their Peril," editorial, Washington Post, November 8, 2021, https://www.washingtonpost.com/opinions/2021/11/08/moms-for-liberty-education-elections/.

9.  Attitudes toward abortion and its legalization were not identifiably partisan before or immediately after Roe, which scholars agree caused neither the clash over abortion nor the realignments of political parties. See Rosalind Pollack Petchesky, Abortion and Woman’s Choice: The State, Sexuality, and Reproductive Freedom (Boston: Northeastern University Press, 1984), 295–302; Mary Ziegler, Abortion Politics Polarized before Roe. When It’s Gone, the Fighting Won’t Stop, Washington Post, October 22, 2020, https://www.washingtonpost.com/outlook/2020/10/22/roe-polarize-abortion-politics/ (note that Ziegler refers to abortion politics, not partisan politics). Indeed, Greenhouse and Siegel find that although Republican Party leaders increasingly voted antiabortion, it was not until 1989–90 that Republican voters identified as antiabortion and Democrats as pro-choice ("Before [and after] Roe v. Wade" 2070–2071). In the twenty-first century, the Democratic Party has been increasingly outspoken in its support of women’s reproductive rights, even beginning to support repeal of the Hyde Amendment in 2016.

10.  On the culture of the antiabortion movement, see Jennifer L. Holland, Tiny You: A Western History of the Anti-Abortion Movement (Oakland: University of California Press, 2020); Karissa Haugeberg, Women against Abortion: Inside the Largest Moral Reform Movement of the Twentieth Century (Urbana: University of Illinois Press, 2017). On the violence of the pro-life movement, see Carol Mason, Killing for Life: The Apocalyptic Narrative of Pro-Life Politics (Ithaca: Cornell University Press, 2002); Carol Mason, Minority Unborn, in Fetal Subjects, Feminist Positions, ed. Lynn M. Morgan and Meredith W. Michaels (Philadelphia: University of Pennsylvania Press, 1999): 159–174; Johanna Schoen, Abortion after Roe (Chapel Hill: University of North Carolina Press, 2015), 196–219.

11.  Mason, Killing for Life, 85, chap. 3, passim; Holland, Tiny You; Rosalind Pollack Petchesky, Fetal Images: The Power of Visual Culture in the Politics of Reproduction, Feminist Studies 13 (summer 1987): 263–292.

12.  Mason, Killing for Life, 80–88; Holland, Tiny You.

13.  Mason, Killing for Life; Schoen, Abortion after Roe, chap. 5; Stanley K. Henshaw, The Accessibility of Abortion Services in the United States, Family Planning Perspectives 23:6 (November-December 1991): 250–252, table 4; Feminist Majority Foundation, Walking the Gauntlet: Daily Harassment of Women Patients, Clinics, and Healthcare Workers (2019), accessed August 12, 2021, https://feminist.org/anti-abortion-violence/harassment.html.

14.  National Academies of Sciences, Engineering, and Medicine, Consensus Study Report on the Safety and Quality of Abortion Care in the United States (Washington, D.C.: National Academies Press, 2018), 148–58, quotation on 153, https://www.nap.edu/read/24950/chapter/6#148. This report also notes that abortion does not cause abnormal placentation (after a D&E abortion) [or] preterm birth either. See also epilogue to this book; American College of Obstetricians and Gynecologists, Induced Abortion and Breast Cancer Risk, Committee Opinion no. 434 (June 2009, reaffirmed 2021), https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2009/06/induced-abortion-and-breast-cancer-risk.

15.  Schoen, Abortion after Roe, 180–186.

16.  Jennifer Nelson, ‘All This That Has Happened to Me and Nobody Else’: Loretta Ross and the Reproductive Freedom Movement of the 1980s, Journal of Women’s History 22:3 (fall 2010): 136–160, quote on 150.

17.  Susan L. Smith, Sick and Tired of Being Sick and Tired: Black Women’s Health Activism in America, 1890–1950 (Philadelphia: University of Pennsylvania Press, 1995); Nelson, ‘All This That Has Happened’ ; Jennifer Nelson, Women of Color and the Reproductive Rights Movement (New York: New York University Press, 2003); Byllye Y. Avery, Breathing Life into Ourselves: The Evolution of the National Black Women’s Health Project, in The Black Women’s Health Book: Speaking for Ourselves, ed. Evelyn C. White (Seattle: Seal Press, 1990), 8; Jael Silliman et al., Undivided Rights: Women of Color Organize for Reproductive Justice (Cambridge, Mass.: South End Press, 2004); Loretta J. Ross et al., eds., Radical Reproductive Justice: Foundations, Theory, Practice, Critique (New York: Feminist Press at the City University of New York, 2017); Loretta Ross and Rickie Solinger, Reproductive Justice: An Introduction (Oakland: University of California Press, 2017).

18.  Quotations from SisterSong, Reproductive Justice, accessed August 21, 2021, https://www.sistersong.net/reproductive-justice; Abigail Abrams, ‘We Are Grabbing Our Own Microphones’: How Advocates of Reproductive Justice Stepped into the Spotlight, Time, November 21, 2019, https://time.com/5735432/reproductive-justice-groups/.

19.  In 2021, more than five hundred bills restricting abortion had been introduced and ninety state laws limiting abortion rights had passed by July 1. See Elizabeth Nash and Lauren Cross, 2021 Is on Track to Become the Most Devastating Antiabortion State Legislative Session in Decades (April 30, 2021), Guttmacher Institute Policy Analysis, https://www.guttmacher.org/article/2021/04/2021-track-become-most-devastating-antiabortion-state-legislative-session-decades; Elizabeth Nash and Sophia Naide, "State Policy Trends at