Abortion and Law before Roe v. Wade
As I’ve shown in previous writing and am now researching further, abortion in colonial America was rare, and its illegality uncontroversial. Popular books carried a pro-life message. One, written by a person who called himself “Aristotle,” instructed midwives to refuse “to give directions for such Medicines as will cause abortion,” for doing so “is a high degree of wickedness, and may be ranked with Murther.” Botanist Nicholas Culpeper, writing about drugs useful for some ailments, told midwives, “Give not any of those to any that is with Child, lest you turn Murtherers. Wilful Murther seldom goes unpunished in this World, never in that to come.”
The incidence of abortion in America began to increase as cities, while still small, attracted young people moving away from family protection and restrictions. In 1700, Boston, the largest city, had about 6,700 residents, so it’s no surprise that Benjamin Wadsworth, who would become president of Harvard College, thought it necessary to declare in 1712 that those who “purposely endeavor to destroy the Fruit of their Womb” are “guilty of Murder in God’s account.”
New York City and Philadelphia were tied for second at about 5,000 residents, so it’s unsurprising that on July 27, 1716, New York City enacted an ordinance forbidding midwives to aid in or recommend abortion. All midwives had to swear they would “not Give any Counsel or Administer any Herb Medicine or Potion, or any other thing to any Woman being with Child whereby She Should Destroy or Miscarry of that she goeth withall before her time.”
Most colonies and cities did not have such an explicit law, but that absence did not mean hearts had grown fonder toward abortion. Humans outside the womb viewed humans in the womb as human life, so general laws against murder applied. Prosecutions for abortion before the fifth month would have been difficult, because prior to pregnancy tests and prenatal checkups, only the mother knew for sure. Still, non-prosecutable via lack of evidence is not the same as legal: It’s not legal to murder a person in a distant place as long as no one is looking, and the murderer leaves no footprints.
Abortion in early America was so atypical that specific legislation rarely seemed necessary. In 1821, though, a jury decided that Connecticut celebrity pastor Ammi Rogers had added to his list of seductions teenaged Asenath Smith, and then pressured her to abort. The Norwich Courier raged that never before was there “a trial in which so much baseness and cold calculating depravity of heart were disclosed.” And yet the judge gave Rogers only a two-year sentence, to be served not in the hard-time state prison, but a relaxed local jail.
The Connecticut General Assembly, outraged, became the first state legislature to pass a law specifically targeting abortion. Rogers said the abortion might “have been produced by sickness, infirmity, or accident in the mother,” so the legislature said anyone who made a pregnant woman consume an abortioncausing substance, regardless of results, could spend not only two years in jail, but the rest of his life in prison, if the jury and judge so determined.
As cities grew—New York City in 1820 was up to 120,000—more sensational cases emerged. Other states passed laws like Connecticut’s, but they all had problems. Prosecutors had to prove the existence of an unborn child, yet pregnancy tests did not exist. The mother, or others who had placed their hands on her body and felt movement (starting in the fifth month of pregnancy), were the only ones who could testify that she was indeed pregnant— until she became “great with child” and everyone knew.
New York’s first law, passed in 1828, proved ineffective. Women whose menstrual flow had stopped could say they were the victims of “suppression” in the uterus rather than suppression of morality or honesty. Starting in the 1830s, new printing presses allowed printers to rapidly produce thousands of copies to be sold for one cent rather than six: the profits would come from advertising. Ads for “female monthly regulating pills,” abortifacients that could restart the menstrual flow by killing the tiny creature whose existence had stopped it, became revenue centers.
The ads were technically accurate because the leading cause of “stoppage of the menses” was pregnancy. One of the leading New York advertisers, Ann Lohman, who became known as Madame Restell, was the city’s most notorious abortionist from the 1830s through 1878. During her ascendancy, the New York legislature enacted, amended, and re-enacted laws concerning abortion eight times, attempting to put her and others out of business.
When potions didn’t work, Restell backed up her abortion practice with surgery, so a new New York law in 1846 responded to the increased incidence of surgical abortions by banning use of “any instrument of other means, with intent thereby to destroy such child.” The following year, police finally acted and found a woman, Maria Bodine, willing to testify that Restell had operated on her: “She hurt me so that I halloed out and gripped hold of her hand. She told me to have patience, and I would call her ‘mother.’”
Restell, found guilty, went to jail, but money and political connections preserved her from any great misery. She had her own “prison suite”—no hard chair and lumpy prison mattress, but easy chairs, carpeting, and a fancy new featherbed, with her husband allowed to visit her at any time, and “remain alone with her as long as suited his or her pleasure.” Once she emerged from prison, she returned to her abortion business and did not see the inside of a cell for the next thirty-two years.
During the 1840s and 1850s alone, legislatures in at least thirteen states passed laws forbidding abortion at any stage of pregnancy. By the end of 1868, at least twenty-seven states had the same. Physicians led the charge toward laws specifically forbidding abortion. They emphasized science, backed it up with theology, and had the support of major publishers.
For example, in 1853 Harper & Brothers published The Mother and Her Offspring by Stephen Tracy, who had been a missionary in Singapore and Bangkok, and would become a professor of obstetrics at the New England Female Medical College in Boston. Regarding a creature in the womb, Tracy proclaimed, “Here then is a new individual . . . a human being. It is one of the human family as really and truly as if it had lived six months or six years. . . . Ignorance upon that has resulted in the commission of crimes of the greatest enormity.”
Tracy tried to draw for readers a picture of what still was largely invisible: “At forty-five days, the form of the child is very distinct. The head is very large; the eyes, mouth, and nose are to be distinguished; the hands and arms are in the middle of its length—fingers distinct. At two months, all the parts of a child are present. The eyelids may be distinctly traced, and appear very transparent; the heart is very much developed the fingers and toes are distinct. . . . At three months the lips are very distinct, and the mouth closed; the heart pulsates strongly, and the principal vessels carry red blood. Its weight is about one and a half or two ounces, and its length from five to six inches.”
Tracy gave a scientific summary: The child’s “life commenced at the time of the formation of the embryonic cell—at the moment of conception; and no person has any right to destroy it by any means whatsoever.” He then brought in his religious views: “Whoever for the sake of gain, or for any other possible reason, designedly destroys it, excepting in cases (which very seldom occur) where it is certainly and indispensably necessary, in order to save the life of the mother, commits a most awful crime, and will be called to give an account therefor at the judgment on the Great Day. Even in those lamentable and distressing cases where conception has taken place unlawfully, whatever and however aggravating may have been the circumstances.”
Then, as now, some observers pointed to the frequency of miscarriage as an indication that prolifers should not care so much about abortion: both happen. Tracy, though, said, “The life of this new human being is sacred, and no one but God himself either has, or can have, the least shadow of a right or liberty to take it away.” Respect for God’s sovereignty made the two sad occasions very different. Tracy thought those unconvinced by the Bible’s teaching would pay attention to scientific realizations: “The investigations of physiologists have established them as incontrovertible TRUTHS, which should be known, and felt, and regarded by every human being.”
During the following decade, every human being did not agree, but the American Medical Association clarified its position in 1865, when it gave a special “Prize Essay” award to Dr. Horatio Storer, who wrote, “Physicians have now arrived at the unanimous opinion that the fetus in utero is alive from the very moment of conception. Before the egg has left the woman’s ovary, before impregnation has been effected, it may perhaps be considered as a part and parcel of herself, but not afterwards. When it has reached the womb it has assumed a separate and independent existence, though still dependent upon the mother for subsistence.”
The 19th century AMA’s position was clear: “The first impregnation of the egg is the birth of the offspring to life.” Doctors, though, were frustrated to learn that scientific knowledge only occasionally put abortionists out of business. The New York Daily Herald emphasized “the insuperable legal difficulties in the way of obtaining a conviction. The professional abortionist is able to command the most eminent legal talent that money can secure to interpose technical objections, which often befog juries and thus lead to a disagreement, which is tantamount to an acquittal.”
Storer in 1866 complained that Massachusetts’s thirty-two trials for abortion in the previous eight years had yielded not a single conviction. Frustration extended across the country. A Kentucky case from 1866 focused on a Union-colonel-turned-minister, J. S. Jacques, who allegedly continued the Civil War by seducing Louisa Williams of Georgia and bringing her to an abortionist he had hired. The case was tried in Louisville before a jury mostly made up of Confederates who, as one newspaper put it gently, lacked “any partiality for the defendant.” Nevertheless, the jury acquitted Jacques because, “There was no proof that the miscarriage was produced by malpractice of any kind, or that it was not occasioned by accident.”
In 1870, Storer complained that the Massachusetts Medical Society harbored “habitual abortionists,” yet some said expelling them “would be but to ‘stir a dunghill.’” Because of such apathy, he contended, “the public sentiment has become more and more blunted,” and officials did not prosecute offenders because “a jury could not be found in Boston to convict of this crime.” Legislatures in the 1870s tinkered with anti-abortion laws, sometimes relaxing the evidence needed to convict and increasing penalties—but tougher laws sometimes backfired. Storer quoted the contention of a Dr. Whittier that district attorneys wouldn’t prosecute because the law “was too stringent.”
District attorneys often gave women immunity from all prosecution, in exchange for testimony. That policy emerged, in part, for the same reason prosecutors today often let drug sellers walk, in return for their testimony about kingpins. Prolifers also understood that men often push women into aborting, so women are frequently victims rather than primary perpetrators.
A successful New York prosecution in 1880 featured Dr. Herman W. Gedicke, a wealthy former alderman, who was sentenced to two years in prison for criminal abortion. Evidence that he had paid two thousand dollars to bribe the jury also came to light, and the New York Times quoted Judge McCarter’s characterization of the conviction as “a most signal triumph of the law over power and influence.” Sure—but Gedicke gained release from prison after serving only five months of his term.
J. H. Kellogg, author of popular medical guides in the 1880s, was not optimistic about ending abortion: “Only occasionally do cases come near enough to the surface to be dimly discernible; hence the evident inefficiency of any civil legislation.” Kellogg knew that Leeuwenhoek’s little-man-in-the-sperm view had given way to an understanding that the egg and sperm both had imbedded creativity, but “People work hard to convince themselves and others that a child, while in embryo, has only a sort of vegetative life.”
In 1883, the Wellsboro Gazette (Pennsylvania) noted that one abortionist was “permitted during a period of more than half a century—for more than an average lifetime—to carry on his criminal practices. His neighbors knew and the public knew it. There was little attempt to conceal the nature of his operations.” In 1892, a Dr. Crawford told the Wilkes-Barre Record, “I have been astonished at the revelations that have been made to me of the frequency of this crime. I have been told by medical men and clergymen of the frequency of this crime even in remote country districts a conviction is almost impossible at this time.”
Sometimes journalists followed the money. The Hartford Courant reported in 1894 that Dr. Newton Whitehead paid Detective Frink $550 for immunity; Sergeant O’Toole, $250; lawyer Emanuel Friend, $1,920 (half of which he used to pay police); and lawyer Morris Gottlieb, $100 so he wouldn’t procure important evidence. The Chicago Tribune reported that fifty-year-abortionist Dr. Lucy Hagenow had been indicted by a grand jury eleven times from 1901 to 1907, and never convicted. Hiring tough lawyers was just part of the cost of doing business.
Occasionally an abortionist would go to jail for several months. Then he’d go right back to work, sometimes upping his payoffs to police and others. The typical abortionist “laughed at the law,” paid off some officials, and blackmailed others. Example: in 1929, a jury found elderly Long Island health officer Edwin Carman guilty of “performing an illegal operation.” The New York Journal emphasized that Carman was a “socially prominent physician . . . from a prominent old Long Island family,” who had fallen upon hard times. The judge handed him a suspended sentence, contingent on his retiring from medicine and abortion.
Corruption went both ways. In 1930, New York Assistant DA William Ryan resigned amid charges of soliciting $10,000 from abortionist Maurice Sturm. The New York Evening World said Sturm had “declared to friends in New Jersey that his political pull in New York was so strong that he never would be tried.” Surprise: he was tried. No surprise: a jury acquitted him. The New York Daily News in 1939 published evidence of politicians extorting $40,700 from six abortionists by threatening to expose them before the Medical Grievance Committee of the State Board of Regents.
From the 1920s through the 1960s, Robert Spencer aborted 40,000 unborn children in Ashland, Pennsylvania, a city of 7,000 (in 1940), located one hundred miles northwest of Philadelphia. With patients coming from throughout the United States via an informal referral network, community business owners (hotel, restaurant, dress shop . . .) who profited from his trade made sure police looked the other way. Spencer was frank about his philosophy: “The religionist believes we were created by a god. The evolutionist believes we evolved. I am an evolutionist, hence I am an atheist.”
In the 1960s, Spencer saw abortion as his contribution to solving “the population problem” to which medical advance was contributing: “By overcoming countless fatal diseases and conditions it gave society a low death rate along with unheard-of longevity. The result was wall-to-wall humanity.” Police arrested Spencer three times, but juries acquitted him twice. The third trial ended in 1969, when Spencer, hitting eighty, appeared before the divine Judge.
From the 1920s through the 1940s, abortionist Inez Brown Burns performed or oversaw about 150,000 abortions in San Francisco and Oakland. She became one of the wealthiest women in California history. At her Fillmore abortion center, each of three white-tiled surgical rooms included two sinks which fed into an oversized concrete incinerator buried in the backyard: almost every night, it burned up the remains of unborn babies. Her abortion business was an open secret, with payoffs to police and politicians who might otherwise raise a ruckus.
Burns worked largely unimpeded until 1938, when two San Francisco News reporters, Mary Ellen Leary and Joe Sheridan (who masqueraded as Leary’s husband), wrote an undercover exposé headlined, “San Francisco Mill operates openly.” The problem was abortion and corruption, not cleanliness: a police report described a Burns room as “scrupulously clean and completely outfitted as a hospital.” She escaped punishment for two decades, twice because of hung juries. Her payoffs cost $20,000 per month, and she faced pressure to buy 10,000 tickets for the annual policeman’s ball, at one dollar each.
Finally, a jury found Burns guilty after her anesthetist, Levina Queen, testified to seeing “the head and face, the arms and legs and genital organs” of babies Burns killed. The bigger legal problem turned out to be income tax evasion: Thirty to forty abortions per day at Fillmore, at $75 to $350 each ($900 to $4,200 in today’s dollars), yet Burns claimed a minimal income. She went to prison, even though her attorney pleaded for delay: “Next Sunday is Mother’s Day.” In 1955, she settled with the IRS by paying it $745,325 ($8 million in today’s dollars). She was able to live most of the rest of her life at home. A statue of a little boy stood in front of it.
Overall, the legislative strategy that began in 1821 made abortion less lucrative and more hazardous for abortionists than it otherwise would have been. Some went to jail. Most had to be surreptitious. Illegality made many women and their demanding boyfriends or husbands hesitate before all was lost. But laws were no panacea, and corruption, plus the rarity of convictions, played into the hands of abortion advocates. That corruption was one reason the American Law Institute (ALI), a prestigious society of judges, lawyers, and professors, decided in 1959 to remove abortion from “homicide,” and make it an “offense against the family.”
Playboy called that decision “the thin edge of the wedge on which the [pro-abortion] movement could begin to hammer.” Crucially, ALI also proposed that abortionists could go to work in cases of rape, incest, serious deformity, or whenever the doctor “believes there is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother.” Making abortion legal, based on the mother’s psychology and whatever a doctor “believes,” gave abortion proponents the roadmap over the next decade to send an eight-lane highway through the laws of California and New York.
Many doctors called for abortion law reform, but journalist Lawrence Lader—National Organization for Women founder Betty Friedan called him the “father of abortion rights”—pushed for repeal. Lader saw the possibility of working top-down rather than bottom-up. He discerned that the Supreme Court’s 1965 Griswold v. Connecticut decision, which established a new “right to privacy,” could extend to abortion. The Court at that time was not the subject of the frequent, intense scrutiny that it now receives. The change in strategy Lader promoted, from legislation to judicial action, meant that the 1960s pro-abortion push could come in under the radar of a Washington fixated first on civil rights—although Planned Parenthood particularly picks on babies guilty of gestating while black—and then the Vietnam War.
Abortion was not an issue in the 1966 California election that made Ronald Reagan governor. Early in 1967, a freshman senator, Anthony Beilenson, introduced the “Therapeutic Abortion” bill. California had 518 legal abortions that year, and the common understanding was that the legislation would regularize procedures for those and a few thousand more. The bill made it out of the Senate Judiciary Committee, seven to six; made it out of the forty member state Senate with the minimum number of votes, twenty-one; and coasted through the State Assembly.
Ronald Reagan said abortion was “a subject I’d never given much thought to.” He signed the bill, which followed the ALI script in allowing abortion for a woman’s mental health. From 1967 through 1972, twenty other states liberalized their abortion laws, largely along ALI lines. New York, Alaska, Hawaii, and Washington went all the way to allowing abortion on a mother’s request, without a doctor’s input. Numbers grew—California’s few thousand turned into 100,000 per year—and a backlash could have jeopardized Lader’s stealth strategy, except for one factor: journalists who normally hyped stories downplayed these.
Here are three 1970 examples from coast to coast, starting with the San Francisco Chronicle’s tale of how a typical young woman “came back from the abortion smiling and saying, ‘I feel fine.’” The reporter portrayed the woman putting on “a bright scarf over her hair” and telling her patiently waiting mother, “I’m starved. Let’s go to lunch.” The reporter added that the abortion “procedure is so simple and over so quick that [women] have no feelings of guilt.”
In the nation’s midsection, the Omaha World-Herald quoted “Betty” describing her abortion experience: “I had to stay quiet for 15 minutes. When I got up, I felt like a brand-new woman. I felt so happy.” On the Atlantic, the Long Island Press quoted “Susan” telling the abortionist, when the operation was over, “Oh, thank you, thank you.” The reporter added, “Within the next half hour she will have some cookies and a soft drink in the recovery lounge, fill out a few forms, pay a fee of $200 and be on her way home”—probably skipping, the article suggested.
Connie Marshner, a young conservative in the early 1970s who became a leader of the Free Congress Foundation and then chaired Ronald Reagan’s Family Policy Board, said abortion “wasn’t on anybody’s radar” in Washington. The Roe v. Wade oral arguments at the Supreme Court? “Nobody on the right paid much attention to them.”
Justice Harry Blackmun’s decision relied on Lader, citing him eight times, and accepting as factual his falsified history of abortion acceptance throughout American history: That became “one of the things I’m proudest of,” Lader said. Political conservatives at first ignored the decision, Marshner recalls: “Nobody paid much attention to it except for those who were religiously oriented.”
That all changed as the number of abortions soared and defenders of human life rallied.
Marvin Olasky, PhD, is the author of 28 books, including The Press and Abortion (1988) and Abortion Rites (1992). This article is adapted from the first chapter of Abortion at the Crossroads, an overview of American abortion history and current pro-life opportunities recently published by Bombardier Books.
Very good article. It’s hard to find a good, unbiased history of the issue of abortion in America.