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Abortion Bans Failed in the 19th Century. They’ll Also Fail in the 21st.

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Over the last year, nine states have passed aggressive anti-abortion measures that aim to restrict access to early abortion procedures. The new bans, which have yet to take effect, are a direct challenge to the 1973 Supreme Court ruling in Roe v. Wade, which established a woman’s right to obtain an abortion without excessive government restriction. 

The wave of new state laws criminalizing the procedure has generated protests from pro-choice advocates and has inflamed an already complicated debate that centers on how to best protect life while also maintaining women’s liberty in making reproductive choices. 

Before Roe v. Wade, government prohibition wasn’t particularly effective in eliminating the practice. Even after the first state laws criminalizing abortion were passed in the late-nineteenth century, women found ways to obtain the procedure, all while faced with the threat of arrest and prosecution. Upper-class white women were more likely to find relatively safe ways to break the law, while minorities and the poor turned to shady operators, risking infertility and death. 

Abortion Before 1850: Commonly Practiced and Perfectly Legal

Before the 1850s, local papers from Kansas to New York had ads for “female pills” promising “relief for ladies.” Female physicians like Madame Restell solicited clients looking “to be treated for obstruction of the monthly period.” But the use of coded language merely reflected the Victorian-era’s sensibilities. Up until the 19th-century, abortion of early pregnancy was legal and common. 

These abortion ads stirred little controversy. Bearing children was risky and women were about 40 times more likely to die giving in childbirth than today. 

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.  Before the 1850s, 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.

Abortion After the 1850s: The Medical Establishment vs. Expert Midwives

Public sentiment shifted in the second half of the nineteenth 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 campaigned to pass abortion bans at the state and federal level as a way to shut down unlicensed, and mostly female, practitioners with the end goal to establish state control over the medical profession. 

It was the newly formed American Medical Association, under the direction of Dr. Horatio Storer, that led the effort in criminalizing abortion. Storer made a passionate moral argument against the procedure, which had the effect of delegitimizing 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. He envisioned the “spread of civilization” west and south to be done by native-born white Americans, not by 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 in 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. 

Abortion from 1900 to 1941: The Failure of Criminalization

While abortions were illegal, most women were still able to obtain one from sympathetic physicians and midwives who tended to disregard the law and comply with their patient’s requests. Over more than a century of criminalization—from after the Civil War to the passage of Roe v. Wade—scholars, including Regan, 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 in 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.

Abortion from 1941 to 1973: The Crackdown Intensifies—And Still Fails

The crackdown on abortion intensified with World War II. Physicians joined hospitals and clinics en masse, which brought institutional scrutiny of their decisions. States 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 could not 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 five thousand women each year during this time period. 

Abortion from 1973 to the Present: The Roe v. Wade Era

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 profession’s about-face set the stage for the Supreme Court’s 1973 decision in Roe v. 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 result in a whole new realm of state surveillance and misapplication of laws to monitor women’s bodies.

As with the prohibition of drugs, alcohol, and sex work, a legal ban on abortion wouldn’t be effective because a majority of Americans don’t believe that 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 nineteenth century is better birth control. Today wider access to contraception has driven the U.S. abortion rate down to its lowest levels since the passage of Roe v. 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.

Produced by Alexis Garcia. Camera by Paul Detrick. Archival graphics research by Regan Taylor.

Photo credits: Dan Anderson/ZUMA Press/Newscom, Steve Pellegrino/ZUMA Press/Newscom, Lorie Shaull/Flickr, Library of Congress, U.S. Senate/ZUMA Press/Newscom, Everett Collection/Newscom, National Library of Medicine, AiWire/Newscom. 

Historical Footage: Library of Congress.

“Pine Apple Rag (Scott Joplin piano roll)” by Scott Joplin is licensed under an Attribution-NonCommercial-ShareAlike License (https://creativecommons.org/licenses/by-nc-sa/4.0/). Source: http://freemusicarchive.org/music/Scott_Joplin/Frog_Legs_Ragtime_Era_Favorites/Scott_Joplin_-_08_-_Pine_Apple_Rag_1908_piano_roll.

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