LES 447 Women in American Law Response Paper Assignment

CHAPTER 5

Expansion and Specialization

"My husband has been out of work for over six months and no help is in sight," wrote one mother to Margaret Sanger and the American Birth Control League; "I can't afford more children." Every year she performed two abortions upon herself, and she reported, "I have just now gotten up from an abortion and I don't want to repeat it again." 1 The disaster of the Great Depression touched all aspects of women's lives, including the most intimate ones, and brought about a new high in the incidence of abortion. As jobs evaporated and wages fell, families found themselves living on insecure and scanty funds. Many working people lost their homes; tenants had their belongings put out on the street.2 Married couples gave up children to orphanages because they could not support them. 3

As women pressured doctors for help, the medical practice of abor- tion, legal and illegal, expanded during the 1930s. Physicians granted, for the first time, that social conditions were an essential component of medical judgment in therapeutic abortion cases. Medical recognition of social indications reveals the ways in which political and social forces shaped medical thinking and practice. A handful of radical physicians, who looked to Europe as a model, raised the possibility of liberalizing the abortion law. During these years, abortion became more concen- trated in the hands of physicians in both hospitals and private offices as a result of structural changes in medicine.

If we move away from the dramatic narratives about abortion pro- duced at inquests or in newspapers, which tell of the deaths and dan-

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gers of abortion, and step into the offices of physician-abortionists, a different story can be discerned. Abortion was not extraordinary, but ordinary. The proverbial "back-alley butcher" story of abortion over- emphasizes fatalities and limits our understanding of the history of ille- gal abortion.4 Case studies of the "professional abortionists" and their practices in the 1930s provide a unique opportunity to analyze the ex- periences of the tens of thousands of women who went to physician- abortionists. Many women had abortions in a setting nearly identical to the doctors' offices where they received other medical care. These doc- tors specialized in a single procedure, abortion. They used standard medical procedures to perform safe abortions routinely and ran what may be called abortion clinics. Furthermore, abortion specialists were an integral part of regular medicine, as the network of physicians who referred patients to these physician-abortionists demonstrates. The physician-abortionists represent the expansion of abortion during the Depression decade.

The Depression years make vivid the relationship between econom- ics and reproduction. Women had abortions on a massive scale. Mar- ried women with children found it impossible to bear the expense of another, and unmarried women could not afford to marry. As young working-class women and men put off marriage during the Depression to support their families or to save money for a wedding, marriage rates fell drastically. Yet while they waited to wed, couples engaged in sexual relations, and women became pregnant. Many had abortions. 5

During the Depression, married women were routinely fired on the assumption that jobs belonged to men and that women had husbands who supported them. Discrimination against married women forced single women to delay marriage and have abortions in order to keep their jobs. One such woman was a young teacher whose fiance was un- employed. As her daughter recalled fifty years later, "She got pregnant. What were her choices? Marry, lose her job, and bring a child into a family with no means of support? Not marry, lose her job and reputa- tion, and put the baby up for adoption or keep it?" As this scenario makes clear, she had no "choice." Furthermore, it points to the limita- tions of the rhetoric of "choice" in reproduction; social forces condi- tion women's reproductive options. The teacher's boyfriend found a local physician who helped her in his office; then she went to a hotel to miscarry. Two years later she married a different man, who had a job, and eventually bore seven children.6

That almost a thousand New Jersey women purchased a type of

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abortion "insurance" in 1936 demonstrates that abortion was a recur- ring and common need for many. New Jersey police uncovered a "Birth Control Club" of eight hundred dues-paying and card-carrying mem- bers. Membership in the club "entitled them to regular examinations and to illegal operations, when they needed them, at a further fee of $75 and upward." Most of the members were "girl clerks" who worked in Newark's downtown offices. Just as working people made small reg- ular payments for life insurance and funeral coverage, these working women bought a form of health insurance through dues paid to this "club." These women expected to have abortions in the future. The club provided a means of blunting the expense of abortions and other gy- necological care.7 When the Neiv York Times covered this incident, birth control leaders immediately attacked the headline dubbing this a "birth control" club. The medical director of the American Birth Con- trol League explained that the birth control movement "opposed" abor- tion and that the two were not the same.8

The Depression helped legitimate contraceptives. American society increasingly accepted birth control during the 1930s. Condoms sold briskly in drug stores and gas stations. In 1930, the American Birth Control League had fifty-five birth control clinics in fifteen states; by 1938 there were over five hundred clinics. Hostility toward welfare pay- ments and "relief babies" helped win support for providing birth con- trol to the poor. The federal government quietly sponsored, for the first time, provision of birth control services in the late 1930s. As courts be- gan to overturn the Comstock Laws on contraceptives, they allowed the medical profession to prescribe birth control devices. One 1937 poll found that nearly So percent of American women approved of birth control use. That year the AMA finally abandoned its official opposi- tion to birth control. The medical profession had been pushed by the birth control movement into accepting responsibility for contracep- tion.9 Contraceptives were not foolproof, however.

Greater availability of contraceptives could not alone meet the in- creased need for control over childbearing. The recognized expert on abortion, Frederick J. Taussig, reported that the number of abortions had grown "throughout the world." He believed it was "due less to

[a] laxity of morals than to underlying economic conditions." A New Orleans physician who studied the septic abortion cases at the Charity Hospital found that the number of criminal abortions among poor, white patients rose 166 percent between 1930 and 1931. This surge reflected, he suggested, "the financial pressure … on this type of char- ity patient." Studies of Cincinnati, Minneapolis, New York, and Phila-

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dclphia showed that the use of abortion swelled in the early 193os. 10

Medical studies and sex surveys demonstrated that women of every social strata turned to abortion in greater numbers during the Depres- sion. Comparative studies by class and race appeared for the first time in the 1930s. Induced abortion rates among white, middle- and upper- class, married women rose during the Depression years. The Kinsey In- stitute for Sex Research, led by Paul H. Gebhard, analyzed data from over five thousand married, white, mostly highly educated, urban women. 11 The researchers found that "the depression of the 193o's resulted in a larger proportion of pregnancies that were artificially aborted." For every age group of women, born between 1890 and 1919, the highest induced abortion rate occurred during "the depth of the depression." White, married women were determined to avoid bearing children during the Depression: they reduced their rate of conception as well. 12

In the early years of the Depression, married women aborted more of their first pregnancies than had women of earlier generations. Dr. Regine K. Stix discovered this pattern after interviewing almost a thou- sand women at a New York City birth control clinic in 1931 and 1932, all of whose incomes were severely reduced by the Depression. The young married woman who had an abortion did so "because she was the bread-winner in the family and could not afford to lose her job, much less produce another mouth to feed. A year or two ·later," Stix ex- plained, "if her husband was working, she gave up her job and planned a baby or two." The findings of Kinsey researchers suggest that abort- ing first pregnancies early in marriage might have been a growing trend, particularly among more educated, urban white women. 13

Married black women, like their white counterparts, used abortion more during the Depression. Since African American women lost their jobs in disproportionate numbers, their need may have been greater than that of white women. 14 Unfortunately, Kinsey researchers did not collect data from black women before 1950, but others documented black women's resort to abortion during the 1930s. Dr. Charles H. Garvin, an esteemed black surgeon from Cleveland, commented in 1932 "that there has been a very definite increase in the numbers of abor- tions, criminally performed, among the married." The African Ameri- can press reported on black women's use of abortion. 15 In 1935, Harlem Hospital, which cared for mostly poor black patients, opened a separate ward, "The Abortion Service," to treat the women who came for emer- gency care following illegal abortions. 16

A number of studies showed that white and black married women of

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the same class had abortions at the same rate. A study of reproduc- tive histories collected from forty-five hundred women at a New York clinic between 1930 and 1938 suggested that when class was controlled, working-class women, black and white alike, induced abortions at the same rate. The researchers found that "the incidence of pregnancies and spontaneous and induced abortion [among black women] was identical with that obtained for the entire group." 17 A Houston study found that approximately equal proportions of Mexican, African Amer- ican, and white women had abortions. 18 Studies like these of women of the same class suggest th;it any racial differences in overall abortion rates may be explained best by class differences.

The evidence on the practice of abortion by class is somewhat con- tradictory, but it seems that affluent women had higher abortion rates than did working-class women, but working-class and poor women ac- tually had a greater number of abortions because they were pregnant more often. The Kinsey group of upper- and middle-class white women aborted 24.3 percent of their pregnancies in 1930 and 18.3 percent in 1935. In contrast, the working-class black and white women in the New York clinic study aborted at about half that rate, or 11.5 percent. 19

The key difference between black and white women was in their re- sponse to pregnancy outside of marriage, not their use of abortion. Unmarried white women who became pregnant were more likely to abort their pregnancies than were African American women in the same situation. Instead, more black women bore children out of wed- lock and did so without being ostracized by their families and commu- nity. Dr. Virginia Clay Hamilton discovered important differences in abortion behavior between white and black single women during inter- views with over five hundred low-income women who entered New York's Bellevue Hospital in 1938 and 1939 following the interruption of pregnancy, whether by miscarriage or induced abortion. Hamilton promised confidentiality and found that "the group showed surpris- ingly little reluctance to discuss the intimate questions which were put to them." Both white and black unmarried women had higher rates of induced abortion than did married women, but 64 percent of the un- married white women told of having deliberately induced their abor- tions compared to only 40 percent of the unmarried black women. "Still more striking," commented Hamilton, was the racial difference in abortion behavior among the previously married. Divorced and wid- owed black women, "behav[ ed] essentially like those still married," while divorced and widowed white women returned to the behavior of

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unmarried women when faced with illegitimate pregnancies. The level of induced abortions among previously married white women ap- proached the high level of abortions among single white women. The Kinsey report found the same racial differences in the behavior of un- married women.20

The tolerance of illegitimacy among African Americans was tem- pered by class. As African Americans advanced economically, they held their unwed daughters and sons to more rigid standards of chastity. Similarly, by the time the Kinsey Institute interviewed black women in the 1950s, there were clear class differences in the use of abortion by un- married black women: those with more education ( and presumably more affluence) aborted at a higher rate than those with less education.21

Women's religious background made little difference in their abor- tion rates, though religiosity did make a difference. A study ofworking- class women in New York in the 1930s found almost identical abortion rates among Catholic, Jewish, and Protestant women.22 However, re- searchers found striking differences in the reproductive patterns fol- lowed by women of different religious groups, a finding that seems to reflect class differences. Catholic and Jewish women tended to have their children earlier in their lives and began aborting unwanted pregnancies as they got older; Protestant women tended to abort earlier pregnan- cies and bear children later.23 The Kinsey Report found for both mar- ried and unmarried white women, the more devout the woman, the less likely she was to have an abortion; the more religiously "inactive" a woman, the more likely she was to have an abortion. 24

Access to physician-induced abortions and reliance upon self-induced methods for abortion varied greatly by class and race. Most affluent white women went to physicians for abortions, while poor women and black women self-induced them. Physicians performed 84 percent of the abortions reported by the white, urban women to Kinsey re- searchers. Fewer than 10 percent of the affluent white women self- induced their abortions, though black women and poor white women, because of poverty or discrimination in access to medical care, often did so. According to the Kinsey study on abortion, 30 percent of the lower-income and black women reported self-inducing their abor- tions. 25 Sara Brooks, a black Alabama midwife, recalled her own at- tempt at abortion in the 1930s. A friend told her to go visit "Annie" to get herself out of "trouble." Annie gave Brooks a mixture of camphor gum and nutmeg. When Brooks took it, she recalled, "It made me so sick." The doctor who was called gave her warm baking soda to force

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her to vomit. She believed she would have otherwise died, as her own mother had after taking turpentine to induce an abortion.26

Low-income women's and black women's greater reliance upon self- induced methods of abortion meant that the safety of illegal abortion varied by race and class. Self-induced abortions caused more complica- tions and hospitalization than did those induced by physicians or mid- wives. Since poor women and black women were more likely to try to self-induce abortions and less likely to go to doctors or midwives, they suffered more complications. Dr. Regine K. Stix learned from inter- viewing almost a thousand women in 1931 and 1932 that self-induced abortions, as compared to midwife- or physician-induced abortions, had the highest rates of infection and hemorrhage. Women reported having no complications after their abortions in 91 percent of the abor- tions performed by doctors and 86 percent of those performed by mid- wives. In contrast, only 24 percent of the self-induced abortions were without complications. Of the women who entered the county hospital in Portland, Oregon, after illegal abortions, more than two-thirds had induced their abortions themselves. It is worth noting that although the majority of complications occurred in self-induced abortions, physi- cians performed the majority of abortions. 27

As more women had abortions during the Depression, and perhaps more turned to self-induced measures because of their new poverty, growing numbers of women entered the nation's hospitals for care fol- lowing their illegal abortions. The Depression deepened an earlier trend toward the hospitalization of women who had abortion-related compli- cations in public hospitals. As childbirth gradually moved into the hos- pital, so too did abortion.28 Hospitals separated their abortion cases from other obstetrical cases because of the danger of spreading infec- tion and devoted entire wards to caring for emergency abortion cases. At Cook County Hospital, physicians sent all patients with septic abor- tions or other obstetrical infections to Vard 41. 29 One intern at Cook County Hospital recalled that in 1928 she saw at least thirty or forty abortion cases in the month and a half she worked there; or, one woman a day and several hundred women a year entered the hospital because of postabortion complications. In 1934, the County Hospital admitted 1,159 abortion cases, and reported twenty-two abortion-related deaths that year. Both black and white patients entered the nation's hospitals for care following illegal abortions. 30

Doctors and public health reformers began to realize the importance of illegal abortion as a contributor to maternal mortality. The maternal mortality study conducted by the Children's Bureau, first reported on

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in 1931, spotlighted the magnitude of maternal mortality due to illegal abortion. This study, of over seven thousand maternal deaths in fifteen states in 1927 and 1928, found that illegal abortion was responsible for at least 14 percent of the nation's maternal mortality. 31 Another major study of maternal mortality in New York City by the New York Acad- emy of Medicine found that 12.8 percent of maternal deaths were the result of septic abortion. The New York study also showed that abor- tion had increased as a cause of death both in absolute numbers and in proportion to other causes of maternal mortality. Taussig estimated that approximately fifteen thousand women died every year in the United States because of abortion.32

A few physicians began to talk of reform, and even repeal, of the abor- tion laws. In 1933, two radical physicians published books favoring the decriminalization of abortion in the United States.33 Both of the physi- cian-authors, Dr. William J. Robinson and Dr. A. J. Rongy, were Jewish immigrants from Russia who were active in politically radical circles as well as members of mainstream medical organizations. Both belonged to the AlvIA and the New York State and County Medical Societies. For over thirty years Robinson tried to persuade physicians to provide con- traceptives. In 19n, he advocated the legalization of abortion, along with a few others, but the rest of the medical profession quickly dis- missed such ideas. 34 When Robinson published his book, he considered the time "ripe" for change. In The Law against Abortion: Its Perni- ciousness Demonstrated and Its Repeal Demanded, Robinson contrasted the poisonings, injuries, and deaths of women who had illegal abor- tions in the United States with the safety record of more than a decade oflegal abortions performed by physicians in the Soviet Union. 35

Rangy offered a different tactic in his book, Abortion: Legal or Ille- gal? He advocated an expansion of the legitimate reasons for thera- peutic abortions, which would come close to legalizing abortion. The American public, Rongy argued, already accepted abortion as a "social necessity." "No matter how callous the average physician appears to be," Rangy contended, "he is not left unaffected by the pathetic and often pitiful pleadings of the woman to whom a new pregnancy is a genuine cause of distress." Because of such experiences, most doc- tors, Rongy declared, privately supported liberalizing the abortion laws. Yet physicians feared to voice publicly their support for legal change. Rongy argued that the legal exception for therapeutic abortions set a precedent that could be used. The indications for abortions should be expanded. 36

Although Rongy's book "evoked a controversy," a serious public de-

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bate on the merits of liberalizing the abortion laws did not develop.37 One reason it did not was that it was censored. Rangy complained that "the august New York Times refused to allow the publisher to adver- tise" his book. 38 Open discussion of abortion frightened publishers, some of whom opted for silence on the subject. One magazine had its staff of fourteen discuss whether an article on abortion should be published, then protected itself further by giving the article to "sev- eral hundred women" who were asked whether it was objectionable. None of the women objected, but before publishing the article, the editors deleted certain graphic paragraphs as a result of reader com- ments. Though the author of the article referred to Rangy 's book, she did not say a word about his proposal to liberalize access to abortion. Instead, she emphasized the dangers of abortion and advised, "Have your baby!" 39 Another reporter discovered that citizens who relied upon libraries for information would have a difficult time learning any- thing about abortion. The Ne,v York Public Library possessed no liter- ature on abortion except the sections included in the Children's Bureau maternal mortality study, and the Academy of Medicine refused to allow nonphysicians to see books on contraception and abortion.40

American medical publications similarly avoided open debate on the question of reforming the criminal abortion laws. A JAMA reviewer described both books as "omens of an expansion in the United States of the demand for sex freedom" and criticized them for ignoring "the evils that may follow … repeal or relaxation" of the criminal abortion laws.41

The reviewer may have feared that the United :States would see, as Europe had, the rise of a feminist and socialist movement for legal abortion. The Soviet Union had legalized abortion in 1920, and social- ists and feminists had made the legalization of abortion an issue in Ger- many, Austria, Switzerland, and England.42 In England, a movement for the legalization of abortion arose out of the organizing of leftist- feminists active in the birth control movement. In the 1920s these fem- inists learned that working-class women used abortion as their form of birth control. Furthermore, studies showed that deaths because of ille- gal abortion contributed greatly to maternal mortality. In 1936, a group of middle-class feminists committed to the interests of the working class and socialism formed an organization, the Abortion Law Reform Association (ALRA), to demand that abortion be made legal and acces- sible. The ALRA found support among working-class women in En- gland and helped bring them to speak on their own behalf at parlia- mentary hearings on abortion. 43

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A widespread and vocal political movement for the legalization of abortion never developed in the United States, as it did in England and in Europe. Nonetheless, the challenge to the status quo by a small group of radicals in the 1930s and earlier should not be overlooked. The movements to legalize abortion in the 1960s and 1970s had their roots in earlier efforts during the Depression era. Birth controllers, reform- ers, physicians, and a small segment of the general public were aware of the possibility of decriminalizing abortion. The birth control move- ment reported on the Soviet Union and on European efforts to legalize abortion, as did medical journals and some popular magazines,44 and a handful of leftist women authors addressed the topic of abortion in their fiction.45

Though a few M.D.s advocated greater access to abortion in the De- pression years, birth controllers continued to treat abortion as taboo. Occasionally birth control clinic staff quietly helped women find abor- tions,46 but publicly birth controllers adamantly rejected abortion. The birth controllers were no more brave than mainstream physicians when it came to abortion. A surprising legislative attempt to legalize abor- tion proves the point. In 1939 a Colorado physician-legislator, Senator George A. Glenn, introduced a b

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