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The University of North Carolina Press
The Abortion Rights Controversy in America: A Legal Reader / Edition 1

The Abortion Rights Controversy in America: A Legal Reader / Edition 1

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Product Details

ISBN-13: 9780807855355
Publisher: The University of North Carolina Press
Publication date: 09/13/2004
Edition description: 1
Pages: 352
Product dimensions: 6.12(w) x 9.25(h) x 0.83(d)

About the Author

N. E. H. Hull is distinguished professor of law at Rutgers Law School.

Williamjames Hoffer is assistant professor of history at Seton Hall University.

Peter Charles Hoffer is distinguished research professor of history at the University of Georgia.

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The Abortion Rights Controversy in America

A Legal Reader

The University of North Carolina Press

Copyright © 2004 N. E. H. Hull, William James Hoffer, and Peter Charles Hoffer
All right reserved.

ISBN: 0-8078-5535-9

Chapter One

Abortion Becomes a Crime

Although the controversy over Roe v. Wade has made it seem that the last quarter of the twentieth century is the most important historical era for understanding abortion and abortion rights in America, the law of abortion changed just as dramatically in the first half of the nineteenth century in our country as in the last fifty years. In the formative era of our nation's history, both women's roles in reproduction and the regulation of reproduction became the object of intense public scrutiny. For complex reasons, many states and then the federal government began passing laws that made abortion a crime. By the end of the century, performing or attempting to perform an abortion was punishable in almost all states by fines and imprisonment. Sending abortifacients or abortion information through the mails was also punishable under federal and state law.

Until the nineteenth century, bearing and birthing children primarily involved women, and within the community of women, it was a private affair. Women helped other women through the rigors of pregnancy, and midwives delivered the infant. This is not to say that fathers and husbands were uninterested in children. In Anglo-American law, children were the possession of the fathers, and last names, inheritance, and status passed through the male line. But fathers and husbands ordinarily did not invade the private world of pregnant women. By the same token, although the state took an active interest in general matters of population size and growth, as well as the ethnic composition of the citizenry, governments did not intrude into the reproductive decisions of families.

In the nineteenth century, two new and powerful currents of thinking about domestic life and women's roles in society came to compete with each other, and abortion law became one focal point of the struggle. On the one hand, it was a century of individualistic and liberal ideas about family life which stressed the importance of privacy and self-expression. Among these liberal reform ideas about the family was the notion that women ought to control their reproductive fate. They should be able to decide whether to marry, whether to have children, and whether to continue a pregnancy. Leading nineteenth-century feminists such as Elizabeth Cady Stanton toured the lecture circuit to advance "enlightened motherhood" and "a gospel of few children and a healthy happy maternity." These notions ran against the strong, older, and more conservative current of paternalism, under which women's roles were to remain those of dutiful wife and fecund mother. Some advocates of this stance argued that women who elected not to have children were guilty of the offense of "race suicide." A few proponents of the "race suicide" thesis added to it their fear that if middle-class northern European women did not have large families, the "blood" of the "ruling races" would be tainted by inferior peoples. As sociologist Edward Ross summarized this view in the American Journal of Sociology in 1907, "exaggerated individualism that avoids marriage or else dodges its natural consequences [i.e., procreation] forebodes the extinction of the class, the people, or the race that adopts it.... The one-child or two-child ideal growingly in favor with the middle class would, if popularized, hurry us to extinction."

On the other hand, the debate over reform of domestic life had a public side-that is, many reforms were imposed on families by government. Reformers who believed that moral standards should be dictated by the state often had the best intentions. Their reforms included the ending of slavery by a constitutional amendment, the restriction of alcohol and drug use by statute, and the introduction of child welfare programs funded by states. Reform "from above," as some historians have termed these efforts, also included the most sweeping of all governmental intrusions into domestic life in our history-the introduction of compulsory public schooling. Similar intellectual and political impulses among legislators led to state intervention into the most private aspects of family life: consensual sexual activity. Some states, such as Georgia, even prescribed the allowable manner of sexual congress in the marital bed. By the end of the century, state and federal law also included a ban on sending birth control information through the mails, which was regarded as a form of pornography.

Government interest in what married people did or did not do with regard to reproduction followed a high tide of abortion in the middle of the nineteenth century. Abortionists advertised openly in newspapers. The most well known of these, Ann Lohman, an English immigrant to New York City who called herself Madame Restell, pioneered abortion referral agencies in a number of cities and an abortion clinic in New York City. Arrested repeatedly, she defied the prosecutors until the 1870s. Her rivals included a Dr. Carswell, who guaranteed in his advertisements to "remove the difficulty in a few days" and swore that "strict secrecy is observed." Sarah Blakeslee Chase, a homeopathic physician, sold douche syringes used to prevent conception. Arrested five times for performing abortions, she was routinely acquitted by juries until one patient in her care died. Private female clinics opened in a number of cities and treated "all diseases peculiar to women." There rose a brisk trade in over-the-counter and mail-order abortifacients, including pills, powders, and solutions. Many of these were potentially harmful, and some were poisons.

As the rate of abortion rose to the range of one per every five or six live births in some areas, and perhaps even higher among slaves, doctors and state governments began to focus their attention on abortion. At first the aim of governments was to protect pregnant women, and the first laws they passed regarded women as the victim of a crime. Attempted or successful abortions that killed the mother were capital offenses. If an abortion killed a viable fetus, it was a serious misdemeanor. Pregnant women were not prosecuted even when they solicited and cooperated in the abortion.

Connecticut was the first state to make abortion a crime, in 1821, and New York followed in 1828. The 1828 New York anti-abortion act introduced a clause explicitly legalizing abortion when "the same shall be necessary to preserve the life of such woman, or shall have been advised by two physicians to be necessary for such purpose." This "therapeutic exception" to the anti-abortion law was an elastic one, for doctors might (and in later years did) argue that mental health and future physical health could be considered acceptable reasons for abortions under the therapeutic exception.

In 1845, Massachusetts's law on abortion for the first time made attempted abortion, at any time in the pregnancy, punishable by jail and fines. Under Massachusetts State Laws 1845, chapter 27, "whoever maliciously or without lawful justification, with intent to cause or procure the miscarriage of a woman then pregnant with child, shall administer to her, prescribe for her, or advise or direct her to take or swallow, any poison, drug, medicine or noxious thing, or shall cause or procure her, with like intent, to take or swallow any poison, drug, medicine or noxious thing, and whoever maliciously and without lawful justification shall use any instrument or means whatever with the like intent, and every person with the like intent knowingly aiding and assisting such offender or offenders, shall be deemed guilty of felony, if the woman die in consequence thereof ... and if the woman doth not die in consequence thereof, such offender shall be guilty of a misdemeanor." But juries still resisted the idea that one could indict for a crime when the victim-under the law the mother, not the fetus-wanted the procedure. Over the next decade there were thirty-two trials in Massachusetts for attempted abortion under the new law and no convictions.

New York revised its anti-abortion laws in 1845, making the death of the fetus (as opposed to the death of the mother) a criminal offense. Attempted abortion at any time in the pregnancy, as in Massachusetts, was a crime. New York added a second novelty to its laws: women who sought an abortion or attempted to perform one on themselves were subject to a fine of up to one thousand dollars. This portion of the act, almost unenforceable (for the best evidence was still the testimony of the mother), was never imposed, but it indicated a shift in official attitudes.

In the following years, the example of Massachusetts and New York (the two states were regarded as leaders in many areas of law) influenced other states to add statutes against abortion to their codes or to revise their earlier laws. For example, in a series of anti-abortion laws passed in the 1850s, Texas made any attempted abortion a felony. If the woman died as a result, the charge was changed to murder, even if the woman had consented to the procedure.

State and federal governments did not stop with the imposition of criminal penalties for abortion. They also turned their attention to birth control itself. In 1873 the federal government passed a law colloquially known as the Comstock Act, in its way as fundamentally intrusive to family life as the introduction of public schools. The government made it illegal to sell, prescribe, buy, publish information about, and send through the mails birth control information.

The interpretation of all of these new statutes (legislative acts) was not easy for courts. In our legal system, courts of appeals are charged with the task of deciding whether lower (trial) courts have correctly applied statutes in particular cases. Appellate courts also determine if the statutes themselves violate provisions of constitutions (the highest law in our state and federal legal systems). Many abortion cases raised legal issues that trial court judges misunderstood. Often, attorneys for the defendant asked the judge to instruct the jury on a particular matter of law at the end of the trial, and he refused. Sometimes the grounds for appeal lay in the judge's decision to admit or refuse to admit evidence of some kind. When defendants appealed their convictions to appellate (or supreme) courts, the judges there had to decide if the lower court had applied the law correctly. Thus the statute law on abortion led to "case law" or a set of "precedents" in the rulings of appeals courts.

The nineteenth-century debate between those who favored "liberal" reform and those who preferred reform ordered by government had a direct influence on the abortion/abortion rights issue. Although they were not allowed to vote, hold office, or serve in professions such as the law, women took part in these debates. Women's rights movements did not fulfill their major aims of full legal and civil rights for women until the next century, but advocates like Stanton insisted that reform of women's lives required the end of unfair state-imposed restrictions on women. She explained her position to the delegates at the women's rights convention in Seneca Falls, New York, in the summer of 1848.

[Source]Elizabeth Cady Stanton, "Address to the Seneca Falls Convention," July 19, 1848, in Elizabeth Cady Stanton, Susan B. Anthony: Correspondence, Writings, Speeches, ed. Ellen Carol Dubois (New York, 1981).

We have met here today to discuss our rights and wrongs, civil and political, and not, as some have supposed, to go into the detail of social life alone. We do not propose to petition the legislature [of New York] to make our husbands just, generous, and courteous, to seat every man at the head of a cradle, and to clothe every woman in male attire....

We are assembled to protest against a form of government existing without the consent of the governed-to declare our right to be free as man is free, to be represented in the government which we are taxed to support, to have such disgraceful laws as give man the power to chastise and imprison his wife, to take the wages which she earns, the children of her love; laws which make her the mere dependent on his bounty. It is to protest against such unjust laws as these that we are assembled today, and to have them, if possible, forever erased from our statute books, deeming them a shame and a disgrace to a Christian republic in the nineteenth century....

There seems now to be a kind of moral stagnation in our midst. Philanthropists have done their utmost to rouse the nation to a sense of its sins. War, slavery, drunkenness, licentiousness, gluttony, have been dragged naked before the people, and all their abominations and deformities fully brought to light, yet with idiotic laugh we hug those monsters to our breasts and rush on to destruction. Our churches are multiplying on all sides, our missionary societies, Sunday schools, and prayer meetings and innumerable charitable and reform organizations are all in operation, but still the tide of vice is swelling.... Verily, the world waits the coming of some new element, some purifying power, some spirit of mercy and love. The voice of woman has been silenced in the state, the church, and the home, but man cannot fulfill his destiny alone, he cannot redeem his race unaided. There are deep and tender chords of sympathy and love in the hearts of the downfallen and oppressed that woman can touch more skillfully than man.... So long as your women are slaves you may throw your colleges and churches to the winds. You can't have scholars and saints so long as your mothers are ground to powder ... as in women all have fallen, so in her elevation shall the race be recreated.

Stanton's call for women's equality under the law did not require the intervention of the state in behalf of women. She envisioned instead a negative state that would free women from the oppression of unequal laws. At the same time as she was speaking to the Seneca Falls Convention, Massachusetts was adopting a revolutionary state-sponsored and supervised program of compulsory public education. The best-known and most effective advocate of state-funded public education was Massachusetts's Horace Mann, and he connected compulsory public reform with the rights of the very young.

[Source]Horace Mann, Tenth Annual Report of the Board of Education Together with the Tenth Annual Report of the Secretary of the Board (Boston, 1847), in Lectures and Annual Reports in Education (Cambridge, Mass., 1867)

The expediency of [free public] schools is sometimes advocated on grounds of political economy. An educated people is always a more industrious and productive people. Intelligence is a primary ingredient in the wealth of nations ... the moralist, too, takes up the argument of the economist....


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What People are Saying About This

From the Publisher

This volume is a terrific resource. The editors provide researchers, instructors, and students of the abortion issue a wealth of primary source documents that bring the abortion debate to life in an easy-to-understand, chronological manner.—Karen O'Connor, American University

This rich analysis may provoke the smugly confident in both the pro-life and pro-choice camps, but Hull, Hoffer, and Hoffer's attempt at an even-handed explanation of how and why abortion became the lightning rod of modern American politics and constitutional debate will well serve citizens struggling to define the rights of the living and the unborn in the early twenty-first century. They have given us the most up-to-date and accessible map through the thickets of contesting judicial opinions and their social determinants.—James W. Reed, Rutgers University

The work provides a superlative roadmap for advanced undergraduate and graduate students approaching the issue for the first time, and it is a valuable reference for more experienced scholars. . . . The Abortion Rights Controversy in America is an essential resource for anyone seeking to understand the legal ramifications of the abortion issue.—Perspectives on Political Science

This valuable collection of documents exposes readers to the rich history of the abortion controversy, and gives us a historical perspective on contemporary controversies that deepens our understanding.—Mark Tushnet, Georgetown University Law Center

[The Abortion Rights Controversy in America: A Legal Reader] provides a rich collection that will be well received by legal historians, professors who teach in the area of women and law, and undergraduate students and general readers who are interested in the history of abortion rights.—Law and Politics Book Review

The collection is ideologically balanced, and will be a useful reference for students and scholars interested in issues involving reproductive freedom.—Choice

Easily accessible and poignant without simplifying.—Law and History Review

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