Vol. 7 No. 7 (July 1997) pp. 376-380.

WHEN ABORTION WAS A CRIME: WOMEN, MEDICINE AND LAW IN THE UNITED STATES, 1867-1973 by Leslie J. Reagan. Berkeley: University of California Press, 1997. 384 pp. Cloth $29.95. ISBN 0-520-08848-4.

Reviewed by Lauren Bowen, Department of Political Science, John Carroll University.
 

In this provocative and timely work, Reagan, a social historian, challenges us to think differently about the role abortion has played in the lives of American women. In so doing, she refines our understanding of the role law plays in ordinary lives as well as complements our understanding of how law shapes and is shaped by institutions and structures such as medicine. In the tradition of Michael Lipsky's STREET-LEVEL BUREAUCRATS, Reagan wants us to examine public policy made at the national level where it is carried out: at the local level, in one-on-one interactions and on a day-to-day basis (p.1). Analyzing the actual practice of abortion and the enforcement of statutes criminalizing abortion asks the reader to view the law as an organic entity that takes its meaning from the daily lives of those most directly affected by the codified policy.

Although not an entirely original argument, Reagan's case study nicely bolsters this understanding of law and policy and does so in a way that also challenges traditional views of women and the nature of their lives prior to the modern women’s movement. Indeed, one of the central themes of this book is that women should be viewed as agents rather than as victims. Instead of being acted upon by an oppressive society and state, women sought to take control of their lives and fertility by demanding abortion when deemed necessary and appropriate. And as will be detailed below, Reagan's historical account culminates in the argument that reform in the form of ROE v. WADE (1973) was possible only because there had been a longstanding acceptance and practice of abortion despite its illegality. As Reagan notes (on p. 216) as she begins her analysis of the reform movement to legalize abortion, "(e)xplanations for the transformation of abortion law that point to media coverage of celebrated abortion cases or changes in medical technology or emphasize the personalities of the Supreme Court all simplify the origins of legal and social change." This book should be of interest to subscribers to the LAW AND POLITICS BOOK REVIEW because of this subtle and sophisticated approach to understanding the relationship between legal and social change. Reagan demonstrates nicely that law and medicine share an intertwined and mutually reinforcing relationship. This relationship in turn defines and is defined by the needs and interests of women although not always in a way that is advantageous for them.

Reagan breaks down the era of illegal abortion into four historical periods and organizes the book according to this chronology. She relies primarily on legal records such as those resulting from death inquests to inform her argument but also cites although newspaper accounts frequently. Most of her data are from Cook County, Illinois, but she intersperses the Illinois data with other studies from the time period or alternative data sources. As a political scientist, I found this method to be a bit disconcerting as I was not always sure how generalizable the findings were. I am willing to attribute this reaction to a hazard of having a political scientist critique the work of an historian. As the book is thoroughly footnoted, I suspect that while the observations and inferences may not be universally applicable, the reader can accept the arguments with a high degree of confidence.

The first of Reagan's periods dates from the time of criminalization state by state, which was completed in 1880, until around 1930. Chapters 2-4 document and analyze this historical era. This period was one of continuity where abortion was widely accepted and practiced in women's homes, the offices of physicians, and the offices of midwives. The historical evidence suggests that hundreds of thousands of abortions took place annually during this time period. Most of the women that had abortions were married. Reagan argues that the widespread acceptance of abortion despite its illegality "suggests the persistence of a popular ethic that differed from that of the law and the official views of medicine and religion" (p.21). Thus, Reagan encourages the reader to consider the possibility that the practice of abortion was not markedly different than in the modern era when it has been legal. Indeed, despite some newspaper articles to the contrary, in many ways it may have been a less contentious occurrence at the end of the nineteenth century than at the end of the twentieth century.

In support of this point, Reagan notes that few women referred to the procedure as an abortion. Most women during this time still associated pregnancy with "quickening" or the time when fetal movement is first felt in the womb. Abortions, then as now, for the most part took place long before quickening occurred. Women viewed this procedure as a way to resume their menstrual cycles or of returning their bodies to their "normal" state.

At the same time she is arguing that abortion was commonplace and accepted, she concedes that it was not a particularly public practice. Perhaps the greatest contribution of this work in terms of understanding the status of women is Reagan's depiction of abortion as "an open secret" (the title of Chapter 2). She seeks to challenge the metaphor of silence used by scholars to depict the status of women at the turn of the twentieth century. Instead, she opts for the metaphor of secrecy. While abortion may not have been a topic warranting attention from national policy-makers, it was discussed among women, their families, friends and health care providers. While these conversations may have been individualized, they nonetheless defined policy in practice and had real meaning for women's lives. Thus, equating this private attention with silence privileges public, political speech as it has been traditionally understood and obscures women's historical experiences, portraying them as more isolated, victimized and helpless than they felt. This situation makes the secrecy metaphor more appropriate.

None of this is to say that during this time there were no attempts to enforce the anti-abortion laws. Much of Reagan's analysis is based on the records from inquests conducted after women died from an abortion. That most enforcement occurred only in the most dire of outcomes lends credence to Reagan's view that abortion was widely accepted. Then, as now, there were those concerned that abortion was too common and especially that its illegality was not sufficiently deterring its practice. While abortion did not garner national political attention, it was a contested state and local issue during the Progressive era. The anti-abortion campaigns of this time were centered on trying to change how people thought of abortion -- to establish that life began at conception rather than quickening. This shift meant that medical community was key in efforts to repress abortion during this time. Not surprisingly, anti-abortion campaigns had their greatest success when attention was focused on midwives rather than physicians suggesting that throughout the history of abortion, the interests of doctors were paramount in defining the scope of the debate and its resolution.

The second period, the 1930s, was one of structural transformation. It is detailed in Chapter 5. Abortion was even more available, in largely because of the social and economic conditions produced by the Great Depression, thereby demonstrating the relationship between economics and reproduction. The medical practice of abortion expanded during the 1930s in large part because women were pressuring their doctors for help. The practice of abortion also changed location during this time period moving to hospitals and clinics. As Reagan notes (p.133), the proverbial back alley butcher overemphasizes fatalities and misrepresents the nature of illegal abortion. Reagan says (p. 159) that thousands of women obtained abortions in conventional medical settings and suffered no complications afterwards.

All this emphasizes that the relationship between women and the medical community is more complicated than frequently assumed by feminist scholars. Many doctors were sympathetic to the need to control fertility via abortion. This is probably best demonstrated in Reagan's discussion here (and in the following chapter) of the circumstances under which therapeutic abortions could be performed. Reagan argues quite convincingly that social conditions entered medical judgment and shaped what was viewed as therapeutic and what was not. Mental health was long considered relevant (it is no surprise in this context that it was part of Blackmun's majority opinion in ROE).

The result was that during the Depression there was an expansion of abortion. Many abortions were performed safely in clinics using standard medical practice. Police were frequently bribed to preclude enforcement of criminal statutes. This expansion was a function of economic and social needs of women as well as the changing nature of medicine.

Efforts to control abortion emerged during the third period, dating from 1940 until 1973. These are detailed in Chapters 6 and 7. According to Reagan, this era of repression was attributable to a backlash against the growing practice of abortion as well as changes in gender and female reproductive patterns. Clinics were raided and trusted and skilled abortionists were prosecuted. Women patients were frequently arrested in clinic raids. This was in marked contrast to the practice of enforcing the law when abortion resulted in death and seeking dying declarations from women whose abortions proved to be fatal.

During this period many hospitals created therapeutic abortion committees. While initially some viewed such a move as potentially liberating, it soon proved to be an impediment to abortion. Committees were less likely to consider the whole situations of women and began focusing on strictly medical and clinical indications for therapeutic abortion. This peer review system then had the effect of controlling individual doctors and altering the relationship between women and their physicians.

Reagan's analytic to link this trend to the anticommunist sentiment and McCarthyism of the era seems a bit strained. While it seems credible that prevailing ideologies shape the practice of abortion (indeed, she makes these connections quite well when discussing the Depression) the argument is insufficiently developed to be persuasive. In any event, it is in this period when abortion becomes a clandestine affair. As medicine came to define therapeutic abortions increasingly narrowly and as women were subjected to more intrusions and scrutiny by the state, medical system abortions became harder to obtain. Accordingly, they became more expensive and dangerous and a dual system of abortion emerged dividing women by race and class.

This era of repression prompted the movement to legalize abortion in the fourth historical period, which dates from the 1950s until 1973 and overlaps with the third. It is chronicled in Chapter 8. Reagan examines three phases of reform, each with its own key actors representing different groups and offering different perspectives. These actors included the professionals, physicians and lawyers, and the feminists. Their efforts encompassed grassroots resistance efforts and constitutional challenges by social movement lawyers that merged the feminist and medical professional interests.

The overlapping of the repression and reform time periods is simultaneously the strength and frustration of the book. By noting that the era of repression coexisted and spawned reform efforts, Reagan demonstrates that the social movement to decriminalize abortion was largely contingent upon this repression. However, the social movement was successful because of the era predating the period of repression. Without the longstanding acceptance of abortion by so many, reform efforts probably would have failed. This dialectical approach to legal and social change is compelling and much of what makes this work such a valuable contribution to the literature.

Nevertheless, the method used and data employed to support the argument is sometimes troubling. For example, in Chapter 7, Reagan provides graphic detail and rich accounts of the horrors of obtaining illegal abortions in the 1950s during a repressive time. Yet in Chapter 8, when describing the movement for reform, she writes equally eloquently about feminist networks guaranteeing safe abortions to women as an alternative to the medical establishment. While these scenarios are not mutually exclusive and certainly did coexist given the overlapping of the eras, the selective discussion of both realities reads at times more like finding the data to support the argument of a particular chapter than of placing the simultaneous events into a comprehensive context.

The book ends with a comparatively brief epilogue/conclusion. I must confess that I found it to be profoundly disappointing relative to the rest of the volume. Such careful and thorough documentation of the entire period of illegal abortion warrants an analytic summary that includes a discussion of the implications of the research for understanding women, law and medicine. Instead, the epilogue is rather polemical and not always grounded in the preceding text. I am not asking for neutrality here. I appreciate that Reagan’s treatment of her subject comes with a particular viewpoint or lens through which she has analyzed her information. Using such a lens effectively represents the best of feminist scholarship and this volume, with the exception of the epilogue, continues that tradition. But the epilogue needs to be more critical. Rather than simply asserting that abortion must remain legal and lamenting the ascendancy of the New Right, I would have liked a more nuanced discussion of why legality per se remains so central in the wake of an analysis that points to the agency of women when abortion was illegal, that brilliantly demonstrates the parallels in the practice of abortion at the end of the 19th and 20th centuries, that forcefully makes the argument that law derives its meaning from its every day reality and enforcement. I do not dispute the symbolic value of abortion as a legal right. Nor do I expect any serious argument that making abortion illegal would not ultimately oppress women. But I do expect less reliance on the idea that the mere existence of a legal right improves women’s lives when the foregoing text has so aptly demonstrated that it is a far more complex reality that defines true reproductive freedom. Still, the remainder of the volume speaks for itself and is worthy of being read by those interested in the impact of law on society as well as those interested in abortion specifically and the status of women more generally.

 
REFERENCES:

Lipsky, Michael. STREET-LEVEL BUREAUCRACY: DILEMMAS OF THE INDIVIDUAL IN PUBLIC SERVICES. New York: Russell Sage Foundation, 1980.

ROE v. WADE, 410 US 113 (1973).


Copyright 1997