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What Happens When Abortion is Criminalized

Leslie J. Reagan’s history of the era of criminalized abortion shows us why the Dobbs decision is based on faulty history, and how anything less than legal abortion on demand results in unacceptable harm to those seeking abortions.

Leslie J. Reagan is professor of history, medicine, gender, women’s studies, and law at the University of Illinois. She is a leading expert on the history of abortion laws. Her award-winning book When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973 is the most comprehensive available history of the era of criminalized abortion before Roe v. Wade, and Prof. Reagan is quoted regularly in the press for her knowledge of U.S. abortion history. Her book on abortion law is unique because it focuses not just on the text of laws, but on the enforcement process, i.e., the lives of women who sought abortions pre-Roe. She exposes how criminalized abortion, even when it does not prosecute those getting abortions, is a horror for women and creates an intensive regime of the surveillance and policing of pregnancy. 

Reagan came on the Current Affairs podcast to talk with editor-in-chief Nathan J. Robinson in the third in our series of episodes on abortion in America. Part I, in which Carole Joffe explained the “obstacle course” that (even pre-Dobbs) faces those seeking abortion, is here in audio and here transcribed. Part II, in which Diana Greene Foster discusses the empirical evidence that abortion benefits women, is here in audio and here transcribed.

This interview has been edited and condensed for grammar and clarity.

Robinson

I read an article in The Economist that makes the case, essentially, that criminalized abortion is not that bad for women. And it claims that “There is no documented case in America of a woman being prosecuted for seeking an abortion since 1922. There has only been one case of a woman being convicted of unlawful self management abortion, and that was vacated on appeal.” As I read that and boiled with rage, I thought, “I need to talk to professor Leslie Regan about this.” Could you explain a little bit of why this is such an egregious misrepresentation of the history of how criminalized abortion affected women? Let’s begin with an overview of what it was like for women under the regime of criminalized abortion that persisted until 1973.

Reagan

I had not heard of that particular article. But I have heard of this argument, which, to use one term, is complete baloney. And egregiously wrong, as you say. There are a few cases that we know of where women were prosecuted for having abortions. There is no way to know the total number of cases where that may have happened over the course of 100 years and in 50 states because most prosecutions aren’t recorded. So the only ones that we know about are those that hit the newspaper—for example, one Shirley Wheeler in the late ‘60s in Florida—or if somebody appeals it all the way up to a state court. So we don’t know that.

But what I found is regardless of whether the states said they were punishing women for having abortions, or arresting them or prosecuting them, women were indeed punished. What’s important for today now that abortion is likely to be illegal again in about half of the states is that the process of investigation, in and of itself, is punitive and punishing. Where prosecutors and police wanted to go after abortion and shut it down, the only way to do that was to have evidence, and the evidence comes from women themselves, from their bodies, and from their voices, from coerced testimony and arrest—and, in fact, coerced invasions of their body with gynecological examinations to find evidence of an attempted abortion. So all of that is clearly punitive and humiliating, such as publicizing an abortion and interrogating a woman on her deathbed about who did it. How did they do it? Where did they put those instruments, exactly? Was it between your knees? Was it between…?

It was horrific for the people who were caught up in this process.

Robinson

When I read, “There’s no documented case of woman being prosecuted for an abortion since 1922,” my first thought was, well, that is factually wrong. As you say, the case of Shirley Wheeler in Florida was an outrageous case that hit the newspapers and helped animate the movement for legalizing abortion. So it’s factually wrong. But, more importantly, as you’ve said, it misses the point of how the regime of criminalized abortion worked. In the book, you say that:

“…the methods of obtaining evidence and the use of women as witnesses against abortion punished women by frightening, shaming, and exposing them. In some cases, police arrested and fingerprinted women who had abortions, and in other cases, prosecutors threatened to prosecute them. If they refused to talk, women were physically captured and endured gynecological exams under duress.”

So the whole structure of the regime intimidated women from getting abortions because they knew that there could be, for example, raids on abortion clinics where the police would suddenly show up. And being forced to testify in a public trial about the most private matters is just a horrendous source of humiliation.

Reagan

That’s exactly right. All of those methods that were used in the past are used today in the United States to pursue people for selling and using illegal drugs. So the methods of policing in the drug war will be turned toward suppressing abortion. And similarly, the people who will be viewed as suspects, who will be criminalized, who will be prosecuted and land in jail will be the community that’s already seen as criminal suspects, and already policed excessively, namely, African Americans and poor people. They are the ones who will be most subjected to these kinds of investigations and prosecutions.

Robinson

Your book draws attention to something often missed in discussions of law, which is that passing a law against something is not an act of waving a magic wand and making it disappear. The law has to be enforced, and it is enforced through a process. You excavate all the facts of what actually happened in that process. Abortion was outlawed, but what did that mean at the local level? What took place if someone tried to get an abortion? What were the police doing? What were hospitals doing? And it’s only through understanding those facts that we understand what it means to outlaw abortion.

Reagan

Yes. There seems to be this idea that if you pass a law, it instantly changes the American world. And certainly the anti-abortion movement is saying they want to end abortion. What Dobbs has done is not to end abortion in half the states. It makes the law vague and confusing. And because people are afraid of the law, they will not provide those services. Abortion will go underground. There will be some safe practitioners, and some who are not safe. And women will also turn to doing it themselves, which can be successful, but isn’t always. It’s different now than it was in the past. We have the internet and cell phones and medical (pill) abortions, which did not exist before. And people can order those pills online. But phones and the internet can easily be tracked by the state. We have cameras all over the country, in public and private, to observe people. So the ability to gather the information on something illegal like abortion is better than it was in the past.

Robinson

Let’s go back to your comparison with the drug war. It’s been pretty well proven from the war on drugs that you can’t get rid of drug use itself. So your choices are to have the coercive power of the state punish people who try to use it and therefore make it more dangerous or to have a regime in which it’s safe and legal. These are the options in the real world. And abortion has been commonly practiced in this country. Your book discusses how there’s a difference between the popular morality of abortion and the state criminalization regimes that occur when abortion is made illegal. The idea that the state morality on abortion is an accurate guide to how Americans as whole viewed abortion is misguided. The law was totally different from what the everyday practices of people were.

Reagan

It’s really important for us to understand that looking at the law, or looking at what the Pope or ministers say, does not tell us what people actually believed or thought. What it tells us is those in power with the public voice were criminalizing abortion in the 19th century. A small group of doctors were the ones who led the campaign to criminalize abortion in the U.S. And they were talking about how this was immoral, how women were not doing their duty to the nation to have more babies. Instead, the families were getting smaller. And women were not behaving properly as women. They were involved in politics, were in the public sphere, and were trying to get into medical school when they should be having children. And they were speaking of a very specific group: middle-class, white Protestant women, people of the same class as the men who ran the country. So they were really speaking to this fear that the demographic of the nation and the people in power would change, specifically that Catholic immigrants were having larger families, and they and people of color would outpopulate the true Americans as they saw themselves. So this criminalization of abortion was directed at ensuring the power of white supremacy and men and these particular physicians, because it was also directed at midwives and women doctors.

Robinson

So let me quote Alito. He said:

“Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the 14th Amendment was adopted, three-quarters of the States made abortion a crime at all stages of pregnancy.”

So he used that to say that there is no tradition in this country of the protection of abortion as a right. How do you react to that?

Reagan

I can tell you that thousands of historians say that Alito is no historian. He does not know his history. He ignored the amicus brief that was presented to him by the major professional organizations, which consisted of over 10,000 historians. He made his own version of history to reach the conclusion that he’d already decided on. There is a long tradition in the U.S. of people practicing abortion, providing it, and accepting it, even though it was illegal, and of the law permitting what we would think of as early abortions—that is, abortions before quickening, when a woman could feel fetal movement inside her. Awareness of pregnancy at that time was based on the woman’s understanding of and feeling the sensations of her body. And when she felt quickening, she was pregnant. Prior to that, or before quickening, the law had nothing to say about it. And that means, perhaps, your menses were off. And there were plenty of recipes and guide books that explained how to restore your menses and how to get rid of an “obstruction.”

It’s only after quickening that the law had an interest and said that that was against the law. And this is under common law coming from England, which prevailed in the early colonies and in the early United States. Alito chooses to pretend that quickening is irrelevant even though it was the relevant marking point in law and in morality. He instead says, well, it was always criminalized at some point. And he had plenty of information and court cases and precedents from the time period he prefers to look at that showed that the courts did not consider something pre-quickening as a crime. They threw cases out and said, you don’t have anything to pursue here.

Robinson

He says, “At the time the 14th Amendment was adopted,” rather than at the time the Constitution was adopted. As you pointed out, the criminalization of abortion did not begin for a long time. And as you’ve just explained to us, it arose for very particular reasons at a very particular time period. But then, even after abortion was criminalized, the picture is much more complicated because of this divergence between the letter of the law and the everyday practices of human beings.

Reagan

The letter of the law also included legal abortion. In every state there was an exception that allowed doctors to perform abortions for medical reasons in order to preserve the woman’s life or her health, depending on the state and how it was written. So there was always also legal abortion as long as it was done by a medical doctor. There was nobody watching or keeping track. So if doctors thought their patients should have a way to bring their menses back or handle an obstruction, to use the older language, or to end a pregnancy, they could do that. And it was in the privacy of her own home. That’s where most medical care took place. Perhaps it was in a doctor’s office, but it wasn’t in a hospital. We do know that doctors were always involved in performing abortions. The numbers, we don’t know. But doctors found it to be reasonable in many cases.

There were doctors who spent their entire practice with working-class women early in the 20th century, and they performed abortions when needed. They saw the situation that people were in, and they did that on a regular basis. All of that would be legal. You also had the American Medical Association (AMA) and the leaders of the medical profession announcing that there was a real problem with people demanding abortions. And when the doctors said No to someone asking for an abortion, the woman would laugh and say, I’ll find somebody else. There were lots of other doctors to ask. So while they’re professing the immorality and illegality of abortion to their patients or to themselves, doctors were also busy providing abortions or making referrals. So there’s that difference between public discourse and private behavior and practice.

Robinson

You’ve mentioned laws that draw exceptions for protecting a woman’s health or when a doctor deems it in the best interest of the woman to get an abortion. But one of the things that comes out in your book is the way that these kinds of rules sound reasonable but end up being horrific in practice. For instance, women had to prove suicide attempts so they could get their abortion. Instead of abortion on demand, these rules cause people to behave in certain ways. It’s terrible in practice for everyone involved.

Reagan

In the 1960s, those legal abortions, called therapeutic abortions, performed by a doctor in a hospital, were most commonly done for psychiatric reasons. As you’re pointing out, somebody was going to commit suicide if they didn’t get an abortion. And to get that far, they then had different rules. So it really would depend on where you lived and where you went. But they would usually require two psychiatrists to sign off and say, Yes, she’s suicidal, I believe she should have an abortion in order to prevent suicide. And then they presented that to a committee of multiple doctors who would then decide if they thought that was reasonable before the woman could get an abortion. For a lot of people, that meant paying two psychiatrists or two doctors. The committee might have had to talk to the patient to determine whether it was true. In some cases the committee required examinations.

If it was a non psychological reason they might do a gynecological exam to confirm pregnancy. If the patient was medically unable to carry the pregnancy or it was dangerous to their life, then they said, You shouldn’t be getting pregnant. We’ll do an abortion but only if you also agree to having your uterus removed or to sterilization. So there was another punitive aspect there that would be added on for lots of people. And clearly, if you don’t know that this is a possibility, if you don’t want to talk to lots of people, and if you don’t have money, therapeutic abortions were simply not accessible. And there were studies in the ‘60s that showed that almost everyone who was able to get a legal therapeutic abortion was white, and had private health insurance, and was in a private room. The people more likely to have physical problems or indications, who got care in hospital wards, those of lower income, did not receive therapeutic abortions. So it was very much based on class and privilege.

Robinson

You bring up the inequality aspect of the criminalized abortion regime. You document some of the real horrors and distress that accompanied those seeking an illegal abortion. People think about coat hangers and such, but there are so many things that people wouldn’t necessarily think about. One that really stuck with me was when you talk about how some unethical abortionists would coerce sex out of people who sought abortions. It was a horrible new form of coercion inflicted upon only those who lacked money. And when you criminalize something, you ensure that the most unregulated and coercive practices affect those with the least money.

Reagan

When people determined that they needed an abortion, they had already learned from the media that abortion was deadly, because that’s the way it was always covered. They already knew it was against the law, and they were afraid that they could be caught by police, and they felt greater shame. They felt like criminals for getting medical care for something that is so intimate and that they believed was necessary. When you don’t have a clear, safe place to go, you’re going to go to the one person you hear about. Some abortionists raped their clients or made these so-called deals: Give me a blow job, and I’ll give you your abortion. Today they say, Just give your baby up for adoption. That is not an easy decision. So, this is what people were subjected to and likely will be subjected to again. It’s not just illegal practitioners. Unfortunately, we have lots of stories and lots of data about doctors assaulting their patients while they were under anesthesia, and various other things. We need to do a better job of protecting patients in general.

Robinson

Of course. Criminalization exacerbates all of these things. Let’s revisit the movement that culminated in Roe v. Wade. Alito speaks as if this wasn’t the result of a social movement, as if it was just something that popped into the heads of judges in the mid-1960s and ‘70s rather than a right that was fought for over a period of time. Tell us more about that movement.

Reagan

Good point. History just suddenly occurs. That’s wrong. I think what most people know and expect is that a women’s rights movement, the new feminist movement, fought to decriminalize abortion, and the legalization of abortion became the primary issue across all types of organizations and feminists in the ‘60s and ‘70s. But decriminalization didn’t begin with feminists. It didn’t begin out of a women’s rights movement at all. It began with a small group of professionals, lawyers and doctors, who were talking about the problem with the current law that provided for that exception of therapeutic abortions. Doctors were afraid to provide abortions which they believed their patients needed in their medical judgment. And they wanted to provide therapeutic abortion; they believed it was necessary. But their own hospital therapeutic abortion committees were preventing them from doing so. And the law in their eyes was preventing them from doing so. And so they wanted to expand that law to reform it, to make it a bit easier for doctors to provide abortions for a larger number of cases. They had no idea about repealing the laws completely or saying this should be largely the decision of women themselves. It was just about expanding the law a bit. And they wrote a model law. And as those were presented in the state legislatures, this was before women’s liberation.

There was a woman in California who saw right away that this was going to make things worse, because now you have written into law that there are certain reasons abortion can be performed, so that will limit it further. And it will not take care of the thousands of people seeking abortions. It’s not because they’re in medical danger. It’s not because they were raped. It’s for a whole lot of other reasons. And so this will not solve anything. Eventually, the group of professional reformers came around to this position as well and thought that the criminalization laws simply needed to be repealed.

Robinson

Over time, through the 1960s, some of these liberal professionals who had originally begun thinking about reform actually did come around to full decriminalization. There was this one doctor, Alan Guttmacher, who said that abortion on demand was “the only civilized way to handle the problem.” That’s a radical statement from someone who initially believed only in law reform. To him, anything short of abortion on demand would end up being barbaric. Every kind of regulation requires policing someone, it’s invasive, and it requires the state to interfere in the doctor-patient relationship.

Reagan

Yes. They really came around to that. They learned from women. And they learned from a movement that began to talk about this as healthcare, as being a public health emergency when it’s illegal. There were so many deaths. It was also a matter of sexual freedom for women to be able to make decisions about their own lives, their sexuality, and part of bodily autonomy. It was a woman’s right, a human right. And so it is remarkable how the medical profession really came around rather quickly. I mean, from 1959 to 1966 or so, they supported repeal, and the majority of the medical profession supported repeal, and even the majority of Catholic doctors did. I bring that up because it is the Catholic Church and organizations of Catholic workers, doctors, and nuns who are really the only people opposing these reform laws and opposing repeal until right around the time of Roe v. Wade and after.

So, this is about a movement in the streets, some of what we’re talking about here. And there was also the professional movement. And there were people working in legislatures to get laws passed, doing a lot of petitioning and lobbying. There were referenda in some states. And then there were also people tackling the problem by going after the law and trying to get it declared unconstitutional. So the other way this story gets told is that abortion wasn’t a problem, that it didn’t happen very much. And there was no movement until suddenly Roe v. Wade in 1973. Actually, there were cases coming from almost every state challenging the law, having it declared unconstitutional. And then it was appealed and went up to the Supreme Court. And there were four states where it was already legal. So it is not at all the case that all of a sudden Roe came out of nowhere. In fact, it came out of the cultural, political, and legal moment that the Supreme Court was in, where criminalization was already being declared unconstitutional. And a number of lower level courts and states were legalizing abortion. And what they saw was that people were going to break the law and it was not controllable. The law would be different depending on where you live and who you are. And that means you don’t have a right that is fully shared across the country.

Robinson

You mentioned people breaking the law. It was not just people working through the political process and lawyers filing briefs, but also civil disobedience by women’s groups, people trying to help each other find abortion providers, people willing to incur the risk of prosecution. It was similar to the civil rights movement. People were violating these laws to expose how terrible and oppressive they were.

Reagan

By 1965-66, you had a group in California that was openly on the streets, passing out flyers and saying, This is how to do your own abortion. You could go with a list of names to Mexico and Sweden. There were workshops around the country to teach people how to do their own abortions. (Always when they did those workshops, on college campuses and in cities, there would also be police officers there.) They gave the information and said, Don’t do it yourself. It’s not safe. If you land in the emergency room, the police will interrogate you. What you want to do is go to the safe practitioners who we have already vetted mostly in Mexico because that was the least expensive option rather than flying to Japan. And there was the Clergy Consultation Service, which was a group of ministers and rabbis and pastors who deliberately advised women where they could go for a safe abortion. They had chapters all over the country. And they would meet with people and tell them where they could go. Planned Parenthood had these referral services. There was an illegal underground abortion clinic in Chicago known as Jane, which advertised in the underground newspapers and the student papers. “Call the collective. Call Jane.” And then they would tell people where to go. So this was all completely open and obvious; people were breaking the law. It was the most reputable, educated, upper crust of the religious movement.

Robinson

You’ve talked about how Alito’s history fails to demonstrate an understanding of the complexities of the era of criminalized abortion. But, in a way, his history is also beside the point. Because what happened in the ‘50s through the ‘70s—even if it had been in a society in which abortion had been criminalized since the founding, which it hadn’t—was a really important widespread moral awakening to the fact that basic liberty and women’s equality were incompatible with any regime of criminalized abortion, and Roe v. Wade comes out of that. It’s always criticized as a poorly reasoned decision, but it essentially resulted from the Supreme Court accepting the moral insight that had been forced on the country through this movement.

Reagan

Yes. That moral insight is what I find had existed throughout the entire period of illegal abortion. There would have been no history to write about the criminalization of abortion without the fact that women continued to seek abortions, continued to go to their doctors and purchase things from pharmacists and through the mail. People who were professing their anti-abortion beliefs as doctors in the newspapers and in their medical meetings were also giving referrals, telling people where they could go to find a safe abortionist, whether it was a midwife or a doctor, or performing abortions themselves. And you can see it occasionally at an inquest where somebody died in the early 1900s. In Chicago, a juryman said, “Wait a minute, it doesn’t matter that she wanted it?” And they all hushed him up, because you weren’t supposed to think that way. But he expressed a common understanding that this was something women could decide upon. And that was commonly accepted in private, but people couldn’t say it in public.

There was no women’s movement that allowed people to talk about their sexual behavior, and the use of abortion. There was a birth control movement, and that was made shameful and was under attack. It was amazing that, with the birth control movement, people began to talk about how women should be able to have some way to prevent pregnancy, because pregnancy endangered their lives. And the fear of pregnancy ruined their sex lives. And that was a shocking thing to start talking about. But nobody defended abortion, including the birth control movement.

Robinson

Your book is a history of the criminalization era, so it goes up to 1973. I want to finish by asking you about Roe itself. The way some conservatives talk about it today, the nine men on the Supreme Court in 1973 became radical feminists. But you note that actually Roe v. Wade, which is now characterized as such a radical decision, was kind of a compromise decision, or did not even go nearly as far or use the kinds of justifications and arguments that feminists were arguing for. It really does show that Roe v. Wade was basically the Supreme Court doing the minimum necessary to accommodate the women’s movement of the time.

Reagan

And to accommodate doctors. What feminists have long criticized about Roe v. Wade is that abortion became a decision that belonged to doctors because they had the medical expertise. And the law has to allow doctors to be able to use that expertise and make the decision when appropriate to provide abortions. Now, in practice, it has become that women can seek abortions from people who will provide them. But it really mostly was about giving that power to the doctor. It’s between the doctor and the patient. The Supreme Court was listening very carefully to the medical profession, and investigating what the situation was for doctors. If the most radical of feminists and even liberal feminists had had their way, the reasoning would have made abortion a human right, a medical right. Women are full citizens, and they may make decisions about their bodies because they have bodily autonomy. They can make decisions to carry a pregnancy to term or to have an abortion if they feel that’s right. But that’s not what was written.

Nor did the Supreme Court address the major problem that everyone was concerned about and put into their briefs, which was the disparity by race and class in terms of access to this medical care, and the problem that some people truly were being forced to carry pregnancies to term against their will. Or they were going to providers who were dangerous or taking medications that were dangerous. There were thousands of women every single year in the public hospitals suffering and dying. But the Court did not address any of that. Yes, there is a right to perform an abortion, but no affirmative right which would make it available to everyone who needs it. So, no. By no means was it some radical decision or the Court listening to radical women.

Robinson

We had further to go, and now we have gone backwards. The history that you’ve documented is generally completely left out of the discussion or not understood by people, especially the history about what a criminalization regime is like.

Reagan

Yes. I’m deeply concerned about what this means now and into the future. In those states where it is illegal and becoming illegal, we have a history of a hundred years that shows us what it was like. And some people make the mistake of saying, Well, there won’t be that many deaths. Everything’s safer. Now, it’s not only about deaths, and it is also not only about whether women get prosecuted or not. There will be more deaths; there will be higher maternal morbidity. This will happen, especially, to women of color and to minors and trans people, those who are the least likely to get respectful, excellent medical care.

Robinson

One of the most important points in your book is that even restricting prosecutions to doctors ended up being immensely oppressive to the patients.

Reagan

Yes. It was oppressive to doctors and to their patients as they went looking elsewhere. Criminalization will not put a stop to abortions.

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