Abortion and legal minimalism

The U.S. Supreme Court’s 1973 Roe v. Wade decision that we lament on its Jan. 22 anniversary swept away the abortion laws of all 50 states. Those laws had not sprung up instantaneously. They were typically the product of decades of social development, discussion, and debate—and sometimes legislative wheeling and dealing as well.

Abortion advocates today like to accuse pro-lifers of “hypocrisy” when we equate abortion with homicide but don’t propose treating killing the unborn with exactly the same penalties we employ to punish the killers of born humans. But Chapter 4 of Abortion Rites: A Social History of America, a book I wrote in 1992, explains why early American legislatures prudently passed differentials: They sought sustainability in the face of wobbly public opinion and jury inconsistency. Below is a summary of that chapter.

This is the third and final installment in a series of chapter summaries from Abortion Rites. (See also “Abortion and prostitution” and “Abortion and spiritualism.”) My thanks to WORLD reporter Leah Hickman for selecting these summaries.

During the eighteenth and early nineteenth centuries, legislative action was not the first recourse when social problems arose. Parents, employers, heads of benevolent organizations, teachers, and church leaders represented the different governing authorities individuals were to respect. Newspapers typically argued that family, church, and charity, not civil government, should take leadership in dealing with social problems.

A popular newspaper of the period, The Boston Recorder, had much more coverage of voluntary associations than it did of developments on Capitol Hill or Beacon Hill. Early legislation to protect unborn children developed in this context. Given the mood of an earlier America, abortion legislation emerged only when the number of abortions grew and non-governmental means of containment seemed inadequate.

Two abortion/infanticide scenarios were in the background of early legislation not explicitly connected to abortion. The first occurred when the prostitute or despairing victim of seduction took into her confidence a mother, friend, or madame and plotted the death of the child. Legislators, seeing this threat, passed laws to dissuade the confidant from counseling infanticide. Delaware in 1719 instructed its residents that every person who advises a woman to have an abortion “shall be deemed accessary [sic] to such murder, and shall have the same punishment as the principal shall have.”

The second involved concealment of pregnancies followed by the killing of the child after birth. The first such law emerged in the most populous colony, Virginia, in 1710: “An Act to prevent the destroying and murdering of Bastard Children” noted some mothers secretly killed their infants “to avoid their shame, and to escape punishment.” It declared, “The mother so offending, shall suffer death, as in case of murder, except such mother can make proof, by one witness at the least, that the child (whose death was by her so intended to be concealed) was born dead.”

The death penalty for abortion or infanticide led to legislative second thoughts. Perhaps because of the difficulty of holding to it, the Virginia law evidently fell into disuse. The commonwealth’s legal codes from 1769 on did not include it, and legislators repealed it in 1819, with “doubts existing whether it was in force or not.”

The death penalty for abortion or infanticide led to legislative second thoughts.

When other states passed laws, they tried not to set the penalty too high for juror comfort. Kentucky in 1801 adopted a more workable sentence of two to seven years imprisonment. The Georgia legislature in 1816 established a maximum penalty for concealment of one year but noted the woman could also be charged with murder. It added a section designed to protect the defendant, saying “the constrained presumption” that a child was murdered is not “sufficient or conclusive evidence to convict the person indicted, of the murder of her child.” Such conviction, the law said, required further proof.

The Michigan legislature passed a similar law but allowed those found guilty of concealment to be fined, not imprisoned. Anti-concealment laws moved west with the frontier, and penalties continued to vary. The goal was to make laws that would scare potential killers but not make juries unwilling to convict. In all these jurisdictions, anti-concealment laws represented a search for a sustainable penalty for actions hard to prove beyond the shadow of a doubt. The trial record of such laws also varied, with convictions generally hard to gain.

Nineteenth-century legislators were forced to come to grips with abortion as the infant-killing method of choice gradually changed from infanticide (often with concealment) to abortion. The first state legislative response pinpointing abortion came in May 1821, when the General Assembly of Connecticut passed a law featuring a section sentencing a person convicted with “willfully and maliciously” giving a woman abortion-inducing drugs to imprisonment “during his natural life, or for such other term as the court having cognizance of the offence shall determine.”

Connecticut legislators dealt with the problem of proof. One minister sentenced to two years in prison for causing an abortion through “the use of pernicious drugs” contended that his punishment was unfair because the women he had allegedly seduced merely had a “supposed child.” The legislature crafted a law that stipulated punishment only when a woman was “quick with child” and therefore unmistakably pregnant.

The advent of “quickening” became crucial in the legislation of Connecticut and some other states because—in the absence of pregnancy and blood tests—fetal movement was the only legally established indicator of unborn life. The legislature dealt with the difficulty of proving actual effect by stipulating the guilt of anyone who administered an abortifacient “with an intention … to cause or procure the miscarriage.”

Indiana in 1835 added a law that prescribes fines and imprisonment to anyone who “shall willfully administer” an abortion-inducing drug or “employ any instrument or other means whatever with intent thereby” to perform an abortion. The law in Indiana and other states was an offspring of medical knowledge in 1835 and not an apologia for abortion. Such a law was a large advance for anti-abortion forces that would no longer have to prove that the operation or potion actually had killed the child. Whether or not the attempt was successful, the intent could put him out of business. “Intent” clauses were particularly useful since they did not require prosecutors to prove ill will.

“Intent” clauses were particularly useful since they did not require prosecutors to prove ill will.

Some states combined “intent” clauses with a two-level penalty. One penalty if intent was shown but there was no proof that the unborn child had actually died as a result of the abortion, and a stiffer penalty if the jury was so angry that it would accept the prosecutor’s contention in that regard, even if fetal death by abortion could not be proved beyond the shadow of a doubt. An 1840 Maine bi-level law allowed juries to choose between these two possible convictions.

These nuances show how state legislators were searching for the best sustainable ways to put abortionists out of business. When some judges made life difficult for pro-life legislators, response was quick. After the Iowa Supreme Court in 1856 held that abortion before quickening was not a crime, the next legislature restored the statutory crime. The new statute made abortion of “any pregnant woman” explicitly illegal, with punishment of up to a year in prison, but added the condition that “intent thereby to procure a miscarriage of any such woman” had to be proven.

Proving intent to abort before quickening, in the absence of pregnancy tests, was very hard to pull off. But if the legislators saw this statute as education, the initiative fulfilled its purpose. Similarly, when citizens in Wisconsin wondered whether an abortion to save the life of the mother was illegal, the legislature made sure its statute covered all unborn children but allowed a life-of-the­mother exception.

Why didn’t other states immediately develop their own legislation? One reason: Early nineteenth-century legislatures with short sessions tended to pass laws only when necessary, and generally only after near unanimity was achieved. Since abortion was not perceived as a significant problem until the mid­century, and even then was somewhat removed from the mainstream, some states were able to avoid abortion legislation for a few years.

That began changing as media dailies starting in the 1830s undermined built-in societal containment. Since abortion was largely unacceptable, ads did not use the word. A New York Sun ad in 1839 came closest to mentioning it, but merely spoke of pills that “should not be taken during pregnancy” because they would “produce a******n.” In New York, Dr. Bell promised to cure “irregularity of females.” Madame Vincent offered her own pills, and ads for “Portuguese Female Pills” and “FRENCH LUNAR PILLS” appeared in 1841. The wall of containment built by non-governmental institutions, or by minimalistic legislation, was showing cracks.

The key problem inherent in any new general laws regarding abortion: proof. Abortionists had to be given the benefit of the doubt and considered innocent unless the state proved an actual pregnancy, a live unborn child at the time of the abortion, and the death of that child caused by the abortion. Two centuries ago it was virtually impossible to follow that three-step legal process all the way to a murder conviction. The pregnancy itself could not be proven until quickening, and the continued life of the child at the time of abortion could only be vouched for by the mother or others who had placed their hands on her body. A murder trial without a corpse is hard to win. Almost all abortion evidence was secondhand and a kind of hearsay.

Advertising innovators such as Madame Restell, New York’s leading abortionist from the 1830s through the 1870s, used that understanding to pretend abortion was actually something else.

Legislators had to face another troublesome question: How could the use of abortifacients be banned when those products were used for other practices considered beneficial? According to early nineteenth-century wisdom, women who were supposedly virgins but whose menstrual flow had stopped were the victims of “suppression” in the uterus. Advertising innovators such as Madame Restell, New York’s leading abortionist from the 1830s through the 1870s, used that understanding to pretend abortion was actually something else.

Restell called her abortifacients “female monthly regulating pills,” with the pretense that the only goal was regulation of the monthly cycle. Even reputable doctors spoke of “suppression,” “irregularity, or “stoppage of the menses” in their services. They probably were abortionists, yet was it right to arrest them on the basis of ads, or because they prescribed what had been considered medically valid only a few years before?

The back-and-forth behavior of the New York legislature over the decades indicates the problems. The New York legislature enacted, amended, and reenacted laws concerning abortion ten times from 1828 through 1881, often in regard to current events. Many laws followed sensational press accounts, such as those reporting the Philippi/Wolff abortion and homicide case. Magdalena Philippi died in New York City on March 16, 1869, after Dr. Gabriel Wolff aborted her four- to five-month-old child. There was no way of proving the child to have been quick, so Dr. Wolff could not be prosecuted. The bill that became the Act of 1869, introduced in Albany the very next day, eliminated the quickening distinction and thus simplified the prosecutor’s problems of evidence.

The problem with such quick fixes, however, was always sustainability. Press coverage of a “trunk murder” abortion case in 1871 led to widespread discussion about how severely abortionists should be penalized. Judge Gunning Bedford’s charge to the grand jury included a suggestion that the legislature increase the penalty for abortion from second-degree manslaughter to “murder in the first degree, and punishable as such with death. …” The immediate reaction to Bedford’s suggestion was positive. The New York Times reported “loud applause in court.”

Members of the Medico-Legal Society of New York, though, argued that a death penalty for abortion “would probably result in lessening the chances for a conviction in any case.” The Society’s Committee on Criminal Abortion proposed, contra Bedford, that abortion “should be simply a felony without any specific denomination, and its penalty should be imprisonment for not less than four years. This would give the Judge the power in aggravated cases … to sentence the criminals to imprisonment for life.”

Again, the refusal to make abortion a capital crime did not mean the committee was viewing the unborn child as less than human life. The committee explicitly stated that the being in question was “alive from conception and all intentional killing of it is murder.” The question was one of how best to put abortionists out of business.

The important task, in New York and other states, was to establish the principle that the killing of an unborn child at any period of gestation deserved punishment, regardless of the evidentiary problems involved in pre-quickening abortions.

As the Medico-Legal Society’s preferred bill developed in 1872, the legislature added a limitation on the maximum penalty for abortion: Instead of life imprisonment, no one was to be imprisoned for “more than twenty years.” Judges would not have the option of imposing a life sentence, but there is no indication that the legislature considered unborn children less than human. Instead, the change seemed to be just one more chapter in the search for legal sustainability. The important task, in New York and other states, was to establish the principle that the killing of an unborn child at any period of gestation deserved punishment, regardless of the evidentiary problems involved in pre-quickening abortions.

Some states gave immunity to women from all criminal liability, partly because women pregnant after seduction were considered desperate victims rather than perpetrators, and partly because of the search for any kind of edge in prosecution. New Jersey, New York, and other states gave women immunity from prosecution in exchange for testimony. By providing no or low penalties, so a woman was more likely to testify that she had been pregnant, prosecutors had a chance to leap the evidentiary hurdles of convincing a jury an abortion actually had occurred.

“Intent” clauses sometimes worked well. Example: Texas abortionist Cave advised a young woman, Livie Brown, to take several abortifacients that did not work and further upset his patient by offering her money for sex. She had him arrested. Cave tried to escape an abortion punishment by saying that the potions he recommended did not work, but the Texas Court of Appeals ruled that if “the means shall fail to produce abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means were calculated to produce that result.”

Still, laws were not as effective as some of their champions hoped. Shortly after the Civil War, Dr. John Trader of Missouri could still describe a “disgusting” but familiar scene: a man “sneaks into our office and requests us to produce an abortion” on a woman he had seduced, in order to avoid having “his errant duplicity exposed.” New York journalist James McCabe could still comment on the “class of men and women who make a living by practicing abortion upon women who have been betrayed. …”

Nevertheless, the goal was to contain abortion, to signal that abortion was out-of-bounds—and signal most legislatures did, by overwhelming votes. Legislation and court rulings, Americans of that period clearly understood, would not wipe out abortion, but they could help educate Americans as to what was right and what was wrong.