The Legal Loophole: Therapeutic Abortions
The underlying structure of medicine and the law at the turn of the century fostered the practice of abortion everywhere. When the Chicago Times focused on the business of abortion, it ignored the exception in the state criminal abortion law that allowed physicians to perform therapeutic abortions. The law itself contributed to the medical practice of abortion. The Illinois abortion statute exempted "any person who procures or attempts to produce the miscarriage of any pregnant woman for bona fide medical or surgical purposes." What constituted a bona fide reason, however, was left undefined.[51] The Illinois Supreme Court did not rule on the indications for therapeutic abortion until the 1970s.[52] Physicians could legitimately, according to the law and medical ethics, perform therapeutic abortions in order to save the life of the pregnant woman.
Determining when an abortion was necessary—and thus legal—was left to the medical profession. The medical discourse on abortion (neglected by the Times ) centered on the medical "indications" that required therapeutic abortion. Medical texts gave physicians guidance about the conditions that indicated a therapeutic abortion and taught them which instruments and techniques to use in performing therapeutic abortions. Prescriptive texts did not, however, provide definite answers about when a physician should perform an abortion. Instead, the literature reveals disagreement and conflicting attitudes toward abortion and medicine within the profession. This professional discussion
was not produced for public consumption, but was a semiprivate discourse within and for the profession only. Within these protected, professional venues, doctors could express disagreement.
These ongoing debates among doctors were, on the most obvious level, about medical knowledge and proper treatment; no one wanted women to endure unnecessary therapeutic abortions or to die because one had not been performed. They concerned larger issues than proper medicine, however. The discourse was an effort to mark out a territory for physicians where abortions were unquestionably legitimate and create a clear line that differentiated this area from the area of criminality. Yet, for all the efforts of antiabortion physicians and specialists in obstetrics, who claimed therapeutic abortion as their procedure, legal therapeutic abortion resisted definition, and the line between legal and illegal was always vague.
The legal loophole provided a space in which doctors and women could negotiate and allowed physicians to perform abortions in the privacy of their own offices or homes. Since physicians customarily reached medical diagnoses and decisions independently and practiced alone, they might determine that a therapeutic abortion was medically indicated and perform one without anyone ever knowing of it. Disagreement within the medical profession about when a therapeutic abortion was indicated gave doctors flexibility. They could, whether in conscious collusion or unconscious sympathy, use the legal loophole to provide wanted abortions. The medical indications for this procedure left room for social reasons and personal judgment as well as for "real" reasons, but there is no way to distinguish among them. Indeed, medical diagnosis and therapeutics always implicitly, if not explicitly, included a social and cultural component.[53]
The medical profession as a whole assumed the legitimacy of performing therapeutic abortions. The most vehement of the antiabortion physicians had always insisted on the principle that if pregnancy threatened a woman's life, her life was primary and the fetus had to be sacrificed. On rare occasions physicians explicitly voiced their belief in the morality and necessity of therapeutic abortion. They usually did so only because they had been challenged by someone presenting the Catholic Church's position, which opposed all abortions, including those to save the life of the woman. At a 1904 symposium on abortion sponsored by the Chicago Medical Society, Dr. Charles B. Reed defended the morality of therapeutic abortions after listening to the comments of a Catholic priest. The Reverend O'Callaghan had explained
Catholic doctrine and argued that an abortion could not be justified even "when absolutely necessary to save the mother." In response, Reed began his talk by stating that with "the advance of moral feeling, the opinion has developed that . . . where the lives of both mother and child are imperiled and one can be saved, the child should be sacrificed, since the value of the mother to the State is far greater than that of the unborn babe." As one Minnesota physician remarked on the issue, the "reasoning that may satisfy the conscience of a theologian does not satisfy the conscience of the physician." At Milwaukee's Catholic Marquette University School of Medicine, the differences between Jesuit trustees and medical school faculty over therapeutic abortions exploded and led to mass resignations by the school's professors.[54]
Medical discussion of therapeutic abortion revolved around precisely when the medical situation demanded that a therapeutic abortion be performed, not its legitimacy. Turn-of-the-century physicians accepted a series of physical and disease indications for abortion.[55] "Probably the most common reason," reported one Illinois doctor in 1899, was hyperemesis gravidarum, or excessive nausea and vomiting, which dehydrated and starved the woman. Excessive vomiting as a result of pregnancy was "a serious emergency," which could kill a woman. According to one doctor, the nineteenth century recorded many deaths due to excessive vomiting during pregnancy, but as physicians increasingly did abortions, the number of these deaths fell. Advances in medicine eventually eliminated vomiting as an indication for therapeutic abortion, but change progressed unevenly. Although physicians reported a cure for vomiting during pregnancy in 1925, physicians continued to disagree, and some still advised abortion for vomiting a decade later.[56] Tuberculosis became a leading indication for abortion by the 1910s, but physicians debated this indication through the 1940s.[57]
Excessive vomiting was the most important indication for abortion and one which allowed women and their doctors room for maneuvering. Vomiting was common during pregnancy; how much was "excessive"? The ambiguity of an indication such as vomiting allowed it to be used to justify an abortion that might be desirable on personal as well as medical grounds. Physicians who knew their patient wanted a way out of a pregnancy might determine that the vomiting was dangerous and induce an abortion to protect her. The doctor might have knowingly stretched the "truth" to accommodate his patient or might simply have reached the conclusion the patient desired; there is no way to know. Furthermore, it was an easy symptom for women to self-induce.
Resourceful women learned to feign the symptoms of pernicious vomiting in order to obtain the therapeutic abortions they wanted, and as a result, some medical leaders urged students and colleagues to distrust their female patients' descriptions of their disorders. The legal status of abortion injected distrust into the relationship between physicians and female patients. Dr. Joseph B. DeLee advised in his 1916 textbook on obstetrics, "A word of warning: Let the inexperienced physician beware of simulated disease. A woman will read up on some disease which she knows sometimes gives the indication for abortion, and will try to impress the doctor that she is deathly ill." Pregnant women, according to Dr. E. A. Weiss, "purposely simulate[d] and prolong[ed] the vomiting and distress" in order to win wished-for therapeutic abortions. Physicians, however, were not just tricked by their patients. Weiss believed that there was an "increasing tendency on the part of the laity as well as the profession to take advantage of the law and [medical] teaching," which allowed therapeutic abortion. Dr. Walter Dorsett, chairman of the AMA section on obstetrics, charged that these "fad doctors," who were willing to find reasons to perform therapeutic abortions, were popular among women.[58]
Therapeutic abortion was a contested subject in medicine, as manifested in the question and answer section of JAMA . The correspondence between AMA members and medical advisers makes it evident that physicians did not always agree with or follow the official line. It bears repeating that scholars cannot take official medical texts as accurate descriptions of medical belief or practice, but must read them carefully as prescriptive literature written by leaders of the profession, who hope to shape medicine in particular ways. In this case, the texts point to disagreement among doctors. Query letters from physicians to JAMA asking for advice on therapeutic abortions show both the more conservative prescriptive advice given by the AMA and the more liberal interpretation of the abortion law by physicians in practice.
Physicians induced abortions for eugenic and other social reasons, though these were officially proscribed. For example, in 1902 a doctor asked whether it was justifiable to perform a therapeutic abortion in a case where the woman was "mentally unsound" and "the child," he was sure, "would be a degenerate." The doctor explained that the "husband is a neurasthenic with a bad heredity; her mother has paranoia and has been in the asylum for 35 years; her father was an inebriate." JAMA tersely answered: "It would be criminal." Two weeks later another correspondent suggested that some doctors disagreed with the journal's position. The Indiana doctor wrote, "There are tens of thou-
sands of intelligent people in and outside of the medical profession who join with me in asking you why it would be a crime?" JAMA answered shortly, "Because the laws . . . make no exceptions for such conditions," and concluded, "We do not care to discuss the propriety of modification of the law."[59] The AMA's objection was based not on the need for consent and the danger of coercion, but on its narrow interpretation of when the law allowed physicians to perform abortions.
JAMA' s answer to a query about the possibility of performing an abortion when the pregnancy resulted from rape simultaneously demonstrates the AMA's role in teaching doctors its interpretation of the law and suggests that some did perform abortions for rape. When a physician asked whether an abortion could be justified when pregnancy followed the drugging and rape of a sixteen-year-old girl "of unquestionable reputation," the editor answered firmly in the negative. The physician had confirmed the young woman's moral purity and performed a medical examination and microscopic examinations of her clothing and "vaginal contents" before concluding that a rape had occurred. Nonetheless, JAMA' s response exhibited age-old doubts about the veracity of women when they charged rape. The editor asked the doctor to remember "that pregnancy is rare after real rape, and that the fright may easily cause suppression of menstruation and other subjective symptoms." "The enormity of the crime of rape," JAMA judged, "does not justify murder. This is law." ]AMA 's answer to this letter was more explicit than the laws, which did not specify what justified therapeutic abortions.[60]
When the journal listed the social reasons that did not indicate a therapeutic abortion, it simultaneously described some of the reasons for which physicians performed abortions. According to JAMA , state statutes usually "tolerate" only abortions performed "to preserve the life of the mother from some impending danger. The danger must be real; the bare possibility of death is not sufficient." Furthermore, the medical adviser warned, "under no conditions can an abortion be lawfully induced for the sole purpose of preserving a woman's reputation, or of contributing to her comfort or pleasure, or because of the patient's financial circumstances." These caveats revealed that physicians performed abortions out of concern for their patients: in order to hide the pregnancies of unwed women, because of poverty, and because their patients wanted them.[61] Though not officially approved, abortions were performed by physicians when women expressed their anxieties about pregnancy.[62]
Sometimes, even JAMA admitted, physicians had to grant women
the right to make decisions about their own pregnancies. A 1902 discussion about contracted pelvis, a physical deformity that prevented a woman from delivering a baby vaginally, demonstrates the complexity of medical decision making and the active role played by patients themselves. A Florida physician wrote of a patient with contracted pelvis, who had had a therapeutic abortion previously. He had "urged and insisted" upon a cesarean section, "but both Mr. and Mrs. R. reject the idea as too dangerous and too expensive." He feared having to perform abortions every few months. The JAMA editor admitted that a woman and "her husband have some right" to decide between a dangerous operation to save the fetus or an abortion to save the woman. But the editor limited this right to women who became pregnant "in ignorance" of their pelvic condition. For this woman, who knew of her condition, "her right to a choice in the conduct of the case is undoubtedly much lessened." The advising physician assumed that the woman's pregnancy was her fault and, therefore, in his eyes, she had a less compelling right to make decisions about her own health and body. How the woman was supposed to avoid pregnancy he did not mention, but the medical profession had opposed the teaching of birth control. The JAMA editor favored convincing the couple to agree to a cesarean section, even though the operation was often fatal.[63]
Nonetheless, the advisor acknowledged that the couple might be able to win an abortion despite the doctor's preference and propaganda. The patient deserved the best advice, and, he continued, "sometimes this is not accepted, and we must be content with an alternative." The editor finished by reminding the doctor to call a consultant before performing an abortion. The contradictory answer indicates that the editor realized that many would be unable to convince patients to risk death with a cesarean section and physicians would have to perform abortions. In these types of cases, physicians let women decide the course of action.[64] Different women no doubt weighed their desire for children and the dangers of surgery differently.
Physicians responded to the problem of contracted pelvis with different procedures over time. Therapeutic abortion, induced early in a pregnancy, was an advance over the nineteenth-century method of performing craniotomies, when at the time of delivery the physician punctured the fetal head and pulled out the fully-formed fetus piece by piece in order to preserve the woman's life. By 1920 cesarean sections had replaced therapeutic abortion as the preferred response to the problem of contracted pelvis, though a c-section was still dangerous and probably
more dangerous than an early abortion. The profession decided for women that it preferred to perform surgery that resulted in babies, even if it endangered women's lives. As medical knowledge and skill advanced, women lost their place in making decisions about whether or not they would undergo a more dangerous operation. For some, the increasingly safe c-section was a boon; for those who wanted to rid themselves of a pregnant, however, they no longer had a legitimate out.[65]
The economics of medicine at the turn of the century gave women power in their relationship to doctors. If necessary, a well-to-do woman could threaten to end the doctor's relationship with her entire family. Affluent women, who saw private physicians regularly and often selected the family doctor, had the greatest ability to pressure physicians into providing abortions. For the doctor, losing a family's medical business could mean losing years of fees for child deliveries, children's illnesses, and injuries. The threat of losing—or the promise of winning—a family's business often proved effective. According to medical commentators, these threats worked especially well with young doctors. The competition in the profession, the problem of "overcrowding" as doctors called it, helped make doctors willing to respond to patient demands. Some general practitioners, noted one doctor in 1909, fell into doing abortions after "los[ing] family after family because of their stand against performing abortions." Milwaukee physician E. F. Fish painted a dreary picture to account for the practice of abortion by "young men in the profession." After refusing requests for abortions, the young doctor, "finally, hungry, penniless, his clothing threadbare, his rent due . . . yields to temptation—because he needs money."[66]
The 1888 exposé, the medical discussion about therapeutic abortion, and police reports all point to the readiness of many physicians to help women obtain abortions. Some agreed to do abortions; many more assisted women in an essential way by giving them the name of an abortionist. The evidence of city or regional medical networks underscores the depth of medical involvement in abortion. In one 1929 case in New York, prosecutors found checks showing that the abortionist paid kickbacks to fifty or sixty area physicians.[67]JAMA regularly reported on physicians convicted of abortion.[68]
Law and economics contributed to the practice of abortion, but legal loopholes and money alone do not explain the evident willingness of doctors to perform abortions or refer patients to others who would. Why did doctors help women who sought what was known as the "ille-
gal operation"? Part of the explanation for physicians' capacity to sympathize with women's requests for abortion lies in the nature of medical practice at the turn of the century. Medical practice embedded physicians in family life and female lives. Physicians practiced in the home. There, they primarily interacted with the woman of the house. She called in the doctor for help when her own knowledge and nursing failed and was there when he attended any member of her family. She talked with the doctor about the illness or injury for which he had been called and consulted with him on treatment. It was she who carried out (or not) his orders to feed, bathe, and medicate the patient and continued to care for the sick in her family after he left. (A few families hired nurses, but even then the woman of the household supervised the nurse.) One of the main duties of family practice for any doctor was attending women during childbirth, which, for most women, still took place in the home. This event often first brought the doctor into a family. A physician who succeeded in attending a delivery had a good chance of being called again. Success meant more than delivering a baby, however; it meant developing a working relationship with the birthing woman and her female friends and relatives who attended the delivery along with the physician. Family doctors had to be able to get along with the women in the family. As a result, physicians tended to know women, and, since physicians observed the family in its home while caring for its illnesses, doctors tended to be familiar with their female patients' worries, financial difficulties, household and child-rearing burdens, as well as their fears and physical injuries related to childbearing and general health. Medical practice itself created new understandings in doctors, and medicine may have attracted men who knew how to communicate across gender lines.[69]
Middle-class women were not the only ones to benefit from medical understanding of the female condition. Physicians who cared for many women and many families could have insights into a woman's life without knowing an individual woman well. When women told doctors of their lives, explaining the particularities that made an abortion necessary, many doctors understood. They knew that women's bodies had been weakened from childbearing and wearied from housework, and they had observed the hardships of rearing several children in a poor household. For example, Kate Simon tells of a much-respected Dr. James who performed abortions for poor immigrant women in a Jewish-Italian neighborhood of the Bronx in the 1920s. When he was occasionally arrested, other doctors came to his defense.[70] In short, medical practice sensitized many doctors to the lives of women.
Though urban areas like Chicago provided a favorable environment for the business of abortion, it was not solely an urban phenomenon. It may have been common among rural physicians to perform abortions as part of their family practices. A Milwaukee doctor reported hearing a "country" doctor say, "We all do that kind of work when it is in a nice family and a girl has to be protected."[71] As this physician's comment reveals, the woman's status affected whether a physician sympathized with her and would perform an abortion. The doctor judged whether a pregnancy out of wedlock was to be expected of a particular "girl" or whether it could be excused and aborted as a mistake. The occasional abortion for a deserving patient would never be known by anyone other than the doctor, his patient, and her family. Several long-time, respected, small-town doctors were prosecuted, however, for abortion when patients died. Doctor John W. Aiken, for example, had been the eminent and only physician for over thirty years in Tennessee, Illinois, when he was prosecuted for murder by abortion in 1899. Small towns could lose their only physician in cases like these.[72]
Not every doctor listened and agreed to perform abortions. Many lived up to their profession's rules and refused women's requests. When these doctors reported their experiences, they highlighted their own noble characters while confirming that plenty of others did not share their antipathy to abortion. Physicians who refused to do abortions grimly reported losing patients. In 1900, after observing medicine in Chicago since the 1860s, Dr. Denslow Lewis, a professor of gynecology and president of the Attending Staff of Cook County Hospital, remarked that prominent citizens and physicians regarded abortion "as a matter of routine." He knew of one married woman whose family physician had performed eleven abortions for her. Lewis himself had "lost the patronage of well-known society women" when he refused to perform abortions for them. A prominent gentleman remonstrated Dr. Mary Dixon-Jones of New York when she would not perform an abortion for his wife. "Any doctor who wanted a good practice should take care of his families," the gentleman told her. "This was the physician's duty, and it was done by the best." Another doctor told a familiar tale of being asked to induce an abortion. "For promptly refusing," he recalled, "she dismissed me."[73] These patients knew they could find more responsive practitioners elsewhere.
The 1888 Times exposé provided a handy list of abortionists. Ironically, as the newspaper advertised its intention to suppress abortion, it also stimulated it. Furthermore, not only did abortion information appear on the front page of newspapers, it appeared in the advertising
pages in the back. Dr. Rudolph W. Holmes charged in 1904 that Chicago's "daily papers, magazines, and even some so-called religious papers are most fruitful means of disseminating the knowledge concerning the means for producing abortion." Almost every daily paper in the city, he maintained, carried advertisements with information about abortion, though they were not listed under that word. Sellers of abortifacients caught women's attention by advertising their products as "ladies' safe remedy." Physicians and midwives who advertised themselves as specialists in the "diseases of women" sometimes agreed to induce abortions.[74]