What does the history of abortion tell us to expect, now that the Supreme Court has decided to give states the option of protecting unborn children? If half the states have protective laws, will the laws be enforced? Or will abortion statutes in many places have as much effect as Section 10-501 of Maryland law (which reads: “[a] A person may not commit adultery. [b] A person who violates this section is guilty of a misdemeanor and on conviction shall be fined $10”)?
I cannot find any indication that the state of Maryland is enforcing this law, or that its treasury is bulging from infidelity fines. Enforcement of many laws is disappearing in cities nationwide. For instance, voters in a May referendum in Austin, Texas, where I live, decided in an 86 percent landslide that city police will not arrest anyone found with fewer than four ounces of marijuana.
Initial press coverage of the Dobbs v. Jackson Women’s Health Organization decision ominously suggested that governments would prosecute women and even use data from apps that millions of women use to track menstruation. Journalists rarely told stories of instances when an unexpected pregnancy didn’t ruin a life but enriched it. On the other hand, some of my fellow pro-life advocates were triumphalistic, foreseeing an era in which abortions vanish.
Here’s the historical reality: From the 1840s through the 1940s, public opinion concerning abortion was more negative than it is now, but even during that era, enforcement of abortion bans was rare. Millions of abortions occurred during that century, but only a tiny percentage of doctors did prison time. It was hard to get police to arrest, juries to convict, or judges to support jury decisions and turn down appeals.
A case study
Abortion was a crime in New York in 1846, so on February 23, several hundred New Yorkers gathered in front of the home of New York City’s most infamous abortion provider, Madame Restell. They called her a “wholesale female strangler”; shouted, “Hanging is too good for the monster”; and asked, “Where’s the thousand children murdered in this house?”
The demonstrators cheered when 40 policemen arrived—but instead of arresting Restell, the police surrounded her home to protect her.
When it came to abortionists of the era, bribes beat protests. Even when arrests occurred, prosecutors were rarely able to prove guilt to the satisfaction of all 12 jurors. The New York Herald emphasized “the insuperable legal difficulties in the way of obtaining a conviction. The professional abortionist is able to command the most eminent legal talent that money can secure to interpose technical objections, which often befog juries and thus lead to a disagreement, which is tantamount to an acquittal.”
The law was not impotent. Restell, whose real name was Ann Lohman, did spend one year in jail. When she emerged, she said news reports of her trial and imprisonment were easily worth $100,000 to her in advertising. She spent the next 30 years jail free and continued providing abortions before being arrested again and dying by suicide in 1878.
In Massachusetts, 32 abortion trials between 1849 and 1857 produced zero convictions. A Maine jury in 1849 found abortionist James Smith guilty, but the state’s chief justice said the prosecutor had not proven that Smith had “intent to destroy” the unborn child.
The most-used medical jurisprudence textbook in 1855, Francis Wharton and Moreton Stille’s Treatise on Medical Jurisprudence, was pessimistic about curtailing abortion through legal action: It is “easier to pass laws against abortion than to make them work.” The rarity of convictions did not mean laws were useless: In 1857, Wisconsin physician Henry Brisbane wrote concerning abortion, “It is not probable that any law could be enforced, [yet] the existence of a law making it criminal, would probably have a moral influence to prevent it to some extent.”
Legal frustration but moral influence continued throughout the next four decades. During the 1870s and 1880s, newspapers ranging from The Boston Post to the Oshkosh Daily Northwestern reported that abortion aroused “intense feeling.” Yet with all the intensity, one or two jurors usually held out, or politicized judges overturned verdicts.
A Milwaukee jury in 1883 found former mayoral candidate Dr. C. H. Orton guilty in the deaths of his mistress, Kitty O’Toole, and their unborn child: “We consider his double crime of abortion and murder more than ordinarily brutal and deserving the severest sentence of the law.” But municipal court judge James Mallory, an Orton ally, ignored the jury’s decision and dismissed all charges against him.
Impossible to enforce
Today’s prosecutors, like their predecessors, will have trouble proving their cases. In an 1896 issue of the American Medico-Surgical Bulletin, attorney Robert Taylor dealt with the question “Why Do Abortions Go Unpunished?” His answer: “Every person involved in the affair … is, for his or her own sake, pledged to secrecy.”
Even in the relatively small number of cases involving maternal death, prosecutors faced a “practical impossibility of securing convictions [due to] the secrecy with which this crime in its very nature is committed. … Such proofs as are attainable rarely do more than cast a strong suspicion of guilt upon the person charged with the offense.”
Early in the 20th century, Dr. M. S. Iseman offered an acidic city-by-city tour of how laws were not working at street level. In Washington, DC, thousands of abortions led to “only nine indictments for abortion and three convictions—not enough to do more than to slow down slightly the traffic to abort.”
In New York City, abortion was rampant, but “in some years not a single indictment follows. … It is difficult to say which is the stronger attraction for the lady visitors to the metropolis—the horse-show, the opera, or the gynecologist.” In Atlanta, “after years of suspended animation, the police made a solitary arrest for the crime of abortion.”
What could be done? Chicago had a brief rise in arrests following an 1888–1889 investigative series in The Chicago Times, but by 1904, abortion was again rampant. That year, obstetrician Rudolph Holmes told the Chicago Medical Society, “As infanticide is murder, so should feticide be murder.” He convinced the society to create a Committee on Criminal Abortion. Holmes became chairman and pushed his colleagues to try “influencing the daily press to discontinue criminal advertisements.” In 1905, the Chicago Tribune, visited by Holmes’s committee, agreed to ban ads. Other newspapers followed.
Abortion doctors came up with a new way of advertising their services: They printed business cards and distributed them at brothels and rooming houses. During the first third of the century, Chicago averaged 60 investigations per year and 25 arrests, but only a handful of criminal prosecutions and one or two convictions each year.
Still, Holmes looked for prosecutable cases. When abortion doctor Lucy Hagenow killed a mother and an unborn child in 1907, a quick burial seemed to dispose of the evidence, but Holmes had Chicago coroner Peter Hoffman order the body disinterred. Holmes did a postmortem examination and then testified against Hagenow. His expertise sufficiently convinced all 12 jurors to send Hagenow to the state prison in Joliet for 10 years.
Later, a depressed Holmes explained to colleagues that Chicago abortion doctors had their own legal department, with witnesses on tap and ready to swear “the young woman had an operation elsewhere and the doctor was merely performing a life-saving operation.” So doctors lobbied the US Post Office to crack down on illegal mailings (including abortifacients) in 1912, and that helped for several years. Then Hagenow got out and went straight back to her practice. The cost of limiting abortion was eternal vigilance.
When public opinion moved in a pro-life direction, some district attorneys saw political advantage in responding. Inez Burns was San Francisco’s leading abortionist from the 1920s through the 1940s, but district attorney Edmund “Pat” Brown went after her in 1946 and gained publicity that propelled him into the governorship of California and helped him create a political dynasty. (His son, Edmund G. “Jerry” Brown Jr., served four terms as governor.)
Ambitious district attorneys were persistent when public opinion was on their side. The elder Brown put Burns on trial: The jury, after 85 ballots, was 11–1 for conviction, but juror 12 would not budge. A second trial also ended with a hung jury. Brown was successful the third time, and Burns went to prison for almost three years.
In 1949, back in San Francisco, Burns began aborting babies again and earning big bucks, but she had to spend nearly half of her profits on payoffs and bribes: $6,000 per week to downtown officials, $12,000 per month to San Francisco police, $5,000 “to every politician running for office,” writes Lisa Riggin in San Francisco’s Queen of Vice. In 2022 dollars, that’s more than $6 million per year.
With local officials silenced, another way for pro-lifers to shut down Burns was to use the charge that had put Al Capone behind bars: tax evasion. In May 1951 Burns went to jail even as her attorney pleaded for delay, saying, “Next Sunday is Mother’s Day.” In 1955, Burns settled with the IRS by paying a fine valued at $8 million in today’s dollars.
‘Public sentiment is everything’
Other creative enforcement options have sometimes worked. For example, state licensing authorities can crack down on doctors and others who violate state law. But willingness to do that also depends on public opinion. Abraham Lincoln’s adage in 1858 remains true:
Public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed. Consequently, he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed.
Public opinion had changed enough by 1970 that tens of thousands of women could journey to abort in New York or California, while others had abortions in their own states as laws went unenforced. In one sense, after the Dobbs decision, we are heading back to that era as women travel to abortion-positive states.
But this time, some corporations are paying for the trips as employee benefits. Another difference is that abortion pills by mail are widely available. But just as in the late 1960s, some medical professionals will deliberately break the law in states where abortion is illegal.
Unlike in the 19th century, when newspapers generally villainized abortion providers, many today will proclaim the lawbreakers heroic. But after a few hung juries, prosecutors will be less likely to bring cases to trial.
In some states, attorneys general could step in, but that would not lead to frequent convictions: For example, it would be astonishing if all 12 members of a jury in cobalt-blue Austin would find an abortion provider guilty. Besides, the Austin City Council recently decriminalized abortion, making enforcement of the state abortion law its lowest priority.
Smaller cities, particularly in the South, may see some effective enforcement, and pro-life state laws will also have an educational impact. But if we expect the death of Roe v. Wade to lead to an enormous decrease in the deaths of unborn children, we will be disappointed.
Laws helpfully affect the supply side, but problems of enforcement are all the more reason to keep trying to lower demand and change public sentiment by teaching biblical truth, showing compassion to desperate women, and using pictures to show the humanity of unborn children.
Public sentiment on abortion has been amazingly stable over the decades, with some temporary fluctuations. Some pundits have made a big deal about recent polling that shows decreased pro-life support, compared with public reaction to the Obergefell decision, when support for gay marriage increased. Those changes are not surprising, given the biased reporting of both rulings, in different directions, but the larger polling consistency shows how abortion differs from other controversies: It’s about life or death.
We do need to develop child-friendly public policies and corporate practices. We can learn something from discussions of structural racism during the past several years: American society now has what I’d call structural abortionism. The frequent corporate response to Dobbs—we’ll pay travel costs to legal-abortion states for employees in pro-life states—shows how embedded abortion is.
Let’s face it: Our economy is built on two-earner households. Executives expect college graduates to be career-minded rather than family-minded, and many women have no children or delay giving birth. We need more career and work-time flexibility. Governments and corporations should have childcare stipends and generous maternity leave policies.
Besides those top-down changes, we must better support those who provide one-to-one help to women in crisis. States such as Missouri and Arizona are trying to reduce abortion demand by creating tax credits for contributions to pregnancy-resource centers. Tax credits could also help adoption nonprofits, but that will require more hope among women who choose abortion over “giving away” a child.
As long as the only two choices for many women are abortion or becoming a single mom, pressure to allow abortions legally or illegally will remain.
Here again we can learn from the past. Pro-life advocates 100–150 years ago created crisis pregnancy refuges in dozens of cities. Some had noneuphemistic names like the Erring Women’s Refuge in Chicago, where superintendent Helen Mercy Woods wrote in 1886 that a young woman,
to be saved, must come in contact not with a system or rule, but with another woman. Not only Christlike charity must go out to meet her, but careful, shrewd sagacity and knowledge of human nature. And underneath all must be faith, downright and absolute, now as in the days of the first Magdalene, in a power above earthly effort.
In New York City circa 1901, the Heartsease Home took in unhappily pregnant women and recognized that only Christ “can relieve them of their burden.” Founder Annie Richardson Kennedy wrote it was vital to “work from the inside out.” She said of one young woman, “She came to our home. Though a member of church she did not know what it meant to be ‘born again.’ She knows now.”
Marvin Olasky is the coauthor with Leah Savas of the upcoming book The Story of Abortion in America: A Street-Level History, 1652–2022 (Crossway, 2023), from which this essay is partially adapted.
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