Over the last year, several states have passed controversial laws restricting abortion. Laws passed in Alabama and Georgia that would effectively ban the procedure are aimed at giving the nation’s high court an opportunity to reverse its controversial 1973 ruling in Roe vs. Wade. The history of criminalization pre-Roe provides a window into how abortion bans will play out if re-instituted, and points to ways of reducing the number of abortions in the U.S., while protecting choice and reproductive health. Before the passage of Roe vs. Wade, government prohibition wasn’t very effective. After the first state laws criminalizing abortion were passed in the late 19th century, women found ways to obtain the procedure anyway, even with the threat of arrest and prosecution hanging over their heads. Upper-class white women were more likely to find relatively safe ways to break the law, while everyone else turned to shady operators risking infertility and death. There is no need to speculate about what would happen if full-scale abortion bans were restored. All we have to do is look to the past. Abortion was not always a hot-button political issue in American life. Before the 1850’s local papers from Kansas to New York had ads for female pills promising relief for ladies. Female physicians, like Madam Rustell, solicited clients looking to be treated for obstruction of the monthly period. But the use of coded language merely reflected the Victorian-era sensibilities. Up until the 19th century, abortion of early pregnancy was legal and common. These abortion ads stirred little controversy. Bearing children was risky. Women were about 40 times more likely to die giving birth than today. The infant mortality rate in the late 1800’s was over 17 percent. Abortive tonics and potions were generally ineffective and potentially dangerous, but determined women could turn to midwives or physicians for procedures that roughly mirrored modern techniques. When Abortion was a Crime, by University of Illinois historian Leslie Reagan, documents how terminating pregnancies was both common practice and an open secret. An estimated one in five women had an abortion during this period, and they tended to be married and upper-class. Prevalent cultural attitudes of the time only viewed abortion after the first trimester as immoral. For the 1850’s the turning point from legal to illegal was known as “the quickening,” or when a woman could feel the fetus move, which generally happens in the second trimester. Quickening was an important distinction under common law and Catholic doctrine. Public sentiment shifted in the second half of the 19th century. The criminalization of abortion began mainly as a business tactic to bring women’s reproductive health under control of the emerging physician class. Accredited male doctors campaign to pass abortion bans at the state and federal level as a way to shut down unlicensed and mostly female practitioners. The end goal to establish state control over the medical profession. It was the newly formed American Medical Association, under the direction of Dr.Horacio Storer that led the effort and criminalizing abortion. Storer made a passionate moral argument against the procedure, which had the effect of de-legitimizing expert female practitioners. Again media coverage skewed the reality of abortion procedures. The death rate from abortions performed by midwives and physicians were nearly identical, yet news reports blamed non-accredited female practitioners with sensationalized stories of women bleeding to death from botched procedures. Storer also capitalized on fears of falling birth rates among white native-born women, arguing that if they were allowed to abort, it would hasten the takeover of the country by foreigners and people of color. In 1894, then New York City Police Commissioner Teddy Roosevelt, called white women who sought abortions “race criminals.” The American Medical
Association’s efforts were a resounding success, and driving the practice underground. By 1880, most states had passed laws that prohibited abortion except when a woman’s life was in danger. And generally male doctors got to make the decision when it came to a woman’s personal health. The American Medical Association also scored a victory at the federal level, with the passage of the 1873 Comstock law, an anti-obscenity bill that prohibited sending abortion and birth control information through the U.S. Postal Service. While abortions were illegal, most women were still able to obtain one sympathetic physicians and midwives who tended to disregard the law and comply with their patient’s request. Over more than a century of criminalization, from after the Civil War to the passage of
Roe vs. Wade, scholars estimate that a quarter of all pregnancies ended in abortion. Another consequence of abortion bans was law enforcement interfering in private lives. Cops fought back against illegal abortions with arrests, interrogations, and prosecution. Police officers and prosecutors threatened doctors with jail time to get them to collaborate with local law enforcement, and punishing women who sought their services. In 1902, the Journal of the American Medical Association advised physicians to demand bedside statements of exoneration before treating women who had undergone botched abortions. Men whose lovers had died while having a pregnancy terminated were sometimes arrested and charged with failing to fulfill their paternal obligations. By the Great Depression, abortion was illegal in every state, and yet the practice had become more common. Medical studies and sex surveys indicated that women of every social class turned to abortion in greater numbers as the economy deteriorated. But only the wealthy and well-connected
could safely obtain the procedure through the loophole of medical necessity. This generally involved paying out of pocket to be examined by three doctors, including a psychiatrist, who would make a recommendation to a hospital board. Women who couldn’t afford this option turned to illegal providers whose methods brought the risk of permanent infertility or death. The crackdown on abortion intensified after World War Two. Physicians joined hospitals in clinics and mass, which brought institutional scrutiny of their decisions. Stage tried to close the loophole exploited by wealthy women by mandating approval from a hospital appointed committee. Police raided abortion facilities and then physically examined the arrestees while in custody. Getting a safe abortion became harder, so
the practice went further underground. Organizations like the clergy consultation service, founded by a group of Protestant ministers and Jewish
rabbis, ferried women to states where abortion was legal. By 1970, the group was helping an estimated 150,000 women a year terminate their pregnancies. Other groups helped women travel to Mexico or Puerto Rico to have the procedure done safely. Women who cannot access reliable services turned to nefarious, untrained practitioners. The result was a spike in death rates from abortions in the 1960s. Researchers at UCLA predicted that criminalization would result in the deaths of 5,000 women each year during this time period. Hospitalizations from botched abortions became a national epidemic. Treating women who had abortion complications helped convince a segment of the medical community, that once called for restrictive bans, to push for decriminalization. The professions about face set the stage for the Supreme Court’s 1973 decision in Roe vs. Wade, which struck down state laws criminalizing abortion as unconstitutional. Today that decision could be overturned by the high court’s conservative majority. If that happens it will not only once again drive the practice underground, but also results in a whole new realm of state surveillance and misapplication of laws to monitor women’s bodies. As with prohibition of drugs, alcohol, and sex work, a legal ban on abortion wouldn’t be effective because so many women don’t believe the practice should be illegal. But they also have an easier time than ever before of not getting pregnant in the first place. One of the biggest changes since the days when abortion first became a crime in the 19th century, is better birth control. Today wider access to contraception has driven the U.S. abortion rate down to its lowest level since the passage of Roe vs. Wade. And that number could be brought down even further by making the pill available over-the-counter. The major lesson of history is that activists should focus on changing individual minds. Because outlawing a widely accepted practice always leads to more human suffering.