previous chapter
Chapter 6 Raids and Rules
next chapter

Chapter 6
Raids and Rules

In August 1940, Chicago police raided the Gabler-Mar-tin abortion clinic on 190 North State Street. Police arrested Mrs. Ada Martin, the clinic's new owner; her receptionist, Josephine Kuder; and, as Capt. Thomas Duffy put it, "four girls who were in the office for surgical attention." That raid failed to close Martin's office. Six months later, eighteen police officers again raided the clinic on the morning of February 7, 1941. As Martin later described the events in court, Capt. Duffy entered the office and demanded of her, "Where is your customers?" Then the police "started moving couches and tables and going through all the cupboards and the cash box." The police seized the clinic's furniture, papers, and patient records and arrested Martin and Kuder. Several days later, police entered a business office of Martin's and drilled open a safe from which they confiscated all patient and financial records. The office, Martin recalled, looked "like . . . a bomb shell had hit it." Two and a half months later, police "ransacked" Martin's home and seized more records.[1] When Martin and Kuder came to trial for conspiracy to commit abortion, the prosecution's case against them featured two dozen former patients, who testified about their abortions at the State Street office.

The raid on the State Street office and the subsequent criminal trial of Martin and Kuder are emblematic of the newly aggressive level of the state's suppression of abortion circa 1940. The repression of abortion during the 1940s and 1950s took new forms. Prosecutors no longer


focused their energy on the abortionists responsible for women's deaths, but worked to shut down the trusted and skilled abortionists, many of them physicians, who had operated clinics for years with little or no police interference. Authorities still prosecuted the inept abortionists who killed their patients, but this was neither new nor their primary focus. Instead, prosecutors went after clinics that the medical community, had essentially endorsed through its widespread referral system. The attack on these established practices meant the destruction of a system that worked well for both women seeking abortions and for physicians. This system had created a space in which thousands of women obtained safe abortions from skilled physicians in an environment nearly identical to that of any other medical practice.

One of the purposes of raiding abortionists' offices was to catch women patients. From the start of the State Street investigation, police and prosecutors intended to find patients. When police raided Martin's practice the first time, they caught "four girls." When they raided again in 1941, Capt. Duffy asked Martin, "Where is your customers?" [2] During a raid of another abortion office on State Street, police broke down a door and "found one woman under an anesthetic on an operating table, and another on a cot, resting after an operation." Detectives questioned both women.[3] If police failed to catch patients on the spot, they looked for patient records to locate former patients for questioning. In the Martin case, police confiscated thousands of patient records.[4]

The new mode of enforcing the criminal abortion laws brought women into contact with the criminal justice system in unprecedented ways. Like the old mode, the state's methods used interrogation and the humiliation of public exposure to penalize women who had abortions. However, rather than relying on dying declarations as the primary evidence against accused abortionists, prosecutors now took the novel approach of looking for healthy female patients to serve as witnesses against their abortionists. Prosecutors showed great persistence in tracking down women who had illegal abortions and routinely brought them into the courtroom and put their abortions on display for judge, jury, and journalist. Women had before felt the force of law during interrogations on their deathbeds; now women were forced to speak of their abortions in the male-dominated spaces of the police station and the courtroom.

Almost simultaneously with the shift in police tactics to control abortion, hospital administrators created new policies to restrict therapeutic abortion. Though the new hospital policies and state efforts to


restrict abortion were not part of a coordinated campaign, they were connected. Each reinforced the other. As hospitals constructed barriers to abortion, they acted in conjunction with the state to enforce the criminal abortion laws. The raids and rules together redefined legal and illegal abortion. The definition of legal abortion narrowed in this period, causing that of criminal abortion to broaden. Law and medicine shaped each other.

The new repression of abortion was, in part, a response to the changing circumstances of abortion during the Depression. Abortion became more visible as the practice of therapeutic abortion expanded in hospitals and specialist abortion practices mushroomed. The specialization and institutionalization of abortion during the 1930s facilitated the state's reliance on raiding abortionists' offices. "Professional abortionists," like Dr. Gabler, Dr. Timanus, and Dr. Keemer, had offices, kept regular hours, and had a steady stream of patients coming in.[5] Police officers easily observed their abortion practices.

Medical advances, which improved women's chances of surviving injuries and infections resulting from abortions, contributed to the change in enforcement patterns. The same developments that finally reduced the mortality associated with childbirth reduced the mortality due to abortion. Blood transfusions in the 1930s rescued women hemorrhaging after their abortions; sulfa drugs helped combat infections. Penicillin after World War II, and other antibiotics later, brought about a noticeable decline in overall maternal mortality, including mortality following abortion.[6] State officials quickly adapted their investigative procedures to the new situation—in fact, they took advantage of it. At one trial in which a woman testified against her abortionist, the prosecutor attributed the fact that she was alive and able to appear in court to a recently discovered wonder drug. "Thank God for penicillin," he declared to the jury, "or you might not have had the testimony of Marie L." [7]

But neither medical advances nor structural changes in abortion practice alone can explain the vigorous efforts to suppress abortion. The new repression of abortion was a reaction against the apparent changes in gender and growing female independence. During the Depression women had cut their fertility and appeared to be leaving the home and motherhood for the workplace. World War II accentuated these trends. Furthermore, women's movement into war jobs seemed to contribute to a new "boom" in abortion during the war. Employers' habit of immediately dismissing women upon discovering their pregnancies rein-


forced the need for abortion.[8] Even though women wore overalls to work in war industries during World War II, Americans were ambivalent about these visible changes. Women's industrial work and high wages might be tolerated "for the duration," but few were prepared to accept these transformations in gender permanently.[9] The renewed repression of abortion reveals a new turn in American society toward pronatalism and "traditional" gender roles often associated with the "feminine mystique" of the 1950s. My work confirms what historians Mary Ryan, Elaine Tyler May, Susan Hartmann, and Linda Gordon have also found: the assault on female independence and the promotion of maternity began in the 1940s, a full decade earlier than generally recognized.[l0]

The backlash against abortion reinforced the era's pronatalism. During the 1940s women faced intense social and ideological pressure to bear children. At a 1942 conference on abortion, New York City judge Anna Kross observed, "Today, the pressure is going to be for more and more population." The Ladies Home Journal urged women "to correct the mistakes of the 1920s and '30s" by having numerous babies. In the mid-1940s, influential Freudian psychologists equated maternity with female sexual gratification. By the 1950s, the "domestic revival" was in full swing; American women married younger, and the birth rate actually rose for the first time in the twentieth century,. Although the push for maternity and domesticity was primarily directed at white women, women of color also felt the pressure to subordinate themselves to men as wives and mothers.[11]

The repression of abortion in this period was new, not normal, and should be incorporated into our understanding of the multifaceted and far-reaching effects of "McCarthyism.[12] . The state's surveillance of abortion in this period is another aspect of the political and cultural attack on critical thought and behavior. McCarthyism was devoted not only to eradicating the Communist Party, but to destroying the labor, peace, and interracial movements. As part of the fervent anticommunism of the postwar period, police and government agents investigated and harassed thousands of people for their political views and frightened many more, [13] while the majority learned to conform and keep quiet. Deviation from standard gender and sexual behavior came under attack along with political deviance. State authorities labeled gays and lesbians "perverts and national security risks," and police raided their bars.[14] Abortion symbolized subversiveness, as did these other ideas and activities. In fact, abortion was linked to communism at this time,


and red-baiting entered the medical abortion discourse. The attack on abortion and women who sought to control their own reproduction and lives was the dark side of the era's pronatalist ideology.

Raids and Criminal Trials

Raids of abortionists' offices became the national norm during the 1940s and 1950s. Raiding the establishments of criminals— like gambling, prostitution, and bootleg liquor businesses—was not an unknown technique to police, but raids became newly important in the enforcement of the abortion laws. Reflecting on those years, one journalist commented in 1951, "Ten years ago, reform movements and law enforcement drives drove practically all the competent abortionists out of business." [15]

Police and prosecutors around the country duplicated the innovative investigative methods used by Chicago officials in the Martin case. New York police raided several physician-abortionists in the early 1940s.[16] In 1945, police arrested a San Francisco abortionist, who was known as a "careful and clean operator who functioned so openly that a city official described her business as a 'public utility.'"[17] In 1952, after questioning two patients picked up at a bus stop, detectives arrested a Kentucky physician who had been providing abortions since the late 1930s.[18] Police raided the offices of long-time abortionists in Akron, Detroit, Baltimore, Los Angeles, and Portland, Oregon.[19] The Los Angeles police department had a six-member team devoted exclusively to pursuing abortion cases.[20] As police stepped up raids of abortionists' offices during the 1940s and 1950s, corrupt police officers (or their imitators) cashed in by conducting fake raids and extorting abortionists.[21]

The strategy of raiding abortionists' offices not only resulted in the arrest of the abortionist, but also yielded women who had had abortions. The record of the Illinois Supreme Court indicates the importance of women patients to the state's case against abortionists. Of the cases reviewed by the Illinois Supreme Court regarding abortions performed between 1940 and 1960, women testified about their illegal abortions in approximately two-thirds of the cases; only one-third involved a woman's death. In contrast, in the previous seventy years, over 80 percent of the abortion cases heard by the court centered on a woman's death.[22]


After the February 1941 raid of Martin's clinic, police and prosecutors pursued the clinic's patients in order to question them and use them as witnesses.[23] Police entered Martin's offices and home to find the names and addresses of customers. The assistant state's attorney in charge of the investigation, Samuel Papanek, used the thousands of seized records to summon hundreds of former patients. The state's attorney's office sent letters telling women they were expected to attend a scheduled appointment, without saying why. Papanek threatened to subpoena them to the grand jury if they failed to appear. The letters themselves frightened many who received them.[24] Those who obeyed these ominous letters and kept their appointments learned that Martin's office had been raided and saw the records detailing their own abortions. Detectives—both women and men—then questioned the women about their abortions and informed them they might have to testify against Martin and others.

For the women caught in the prosecutor's net, testifying in court had to be traumatic. Prosecutors denied forcing the women to testify against Martin and Kuder, but none had voluntarily complained or offered to testify. Once called to the witness stand, Martin's patients had to speak publicly of pregnancy and abortion in front of a predominantly male audience of judge, attorneys, officials, and newspaper reporters.[25] If they had been unmarried, they had to admit in court their illicit sexuality and sometimes name their lovers. As one woman remarked, testifying at the trial forced her to remember and speak of that which she had "tried to forget." One married woman with three children had never told anyone of her abortion until under questioning she told investigators and again told the court. Evelyn K. felt forced to speak in court against her will. During her testimony she reluctantly named the man who went with her and paid for the abortion, but remarked that "it should be" a secret.[26] Not all women cooperated with the state's attorney; Mary F. refused to testify "for fear her husband w[ould] find out."[27] Others may not have realized they could refuse. Women who believed that the prosecutor was the "court," a "Judge," and "a Sheriff" believed the law had required them to testify.[28]

The state did force women to speak in public courtrooms in order to enforce the criminal abortion laws. In 1942, the New York state legislature passed a statute that compelled women who had gone to abortionists to testify in criminal abortion cases. When a woman who had an abortion refused to testify at a 1949 abortion trial in Chicago, the judge cited her for contempt of court and ordered her to jail for six


months. One night in jail convinced the woman to testify the next day. In criminal abortion trials, women often testified under duress.[29]

The prosecutor in the Martin case systematically searched for women who had abortions, but did not pursue the hundreds of physicians who referred patients to Martin's clinic. Martin's business records included the names and addresses of referring physicians, but not a single physician testified about referring patients to the State Street abortion clinic. In this case, the state went after the least powerful people while protecting the more powerful, reputable physicians of Chicago. One woman had to name the man responsible for her pregnancy, but the judge allowed another to withhold the name of the physician who had given her Dr. Gabler's card.[30]

On April 16, 1942, after listening to the testimony of twenty-four of Martin's former patients, the judge hearing the case found both Martin and Kuder guilty of conspiracy to commit abortion and sentenced both to the penitentiary for one to three years.[31] They appealed to the Illinois Supreme Court.

In November 1942, the Illinois Supreme Court overturned Martin and Kuder's convictions because all of the evidence against them had been obtained through the patient records, records that had been illegally seized without a warrant. This ruling was constitutionally significant because the state's highest court confirmed that protections guaranteed in the Bill of Rights against illegal search and seizure applied to state officials. The state court pointed to the Fourth Amendment of the United States Constitution and the corresponding clauses in the Illinois constitution that protected the people "against unreasonable searches and seizures." "It is our duty and the duty of all of the officers of the State," the Illinois Supreme Court sternly reminded the state, "to enforce these constitutional rights preserved to the people." The court condemned the actions of the police and prosecutor in the State Street investigation for their "total disregard of constitutional rights."[32] The U.S. Supreme Court had not found that the restrictions in the U.S. Constitution applied to the behavior of local and state police, but the highest court in the state of Illinois did, forcefully. State v. Martin was one of the cases at the state level that recognized and established that the protections against state abuse of power in the U.S. Constitution applied to government authorities at every level. Not until 1961 did the U.S. Supreme Court determine that state authorities could not violate the basic constitutional right against unreasonable search and seizure.[33] The Illinois Supreme Court reversed Martin and Kuder's convictions and remanded them for a new trial.[34]


Newspaper reports of the investigation into Martin's business, which they nicknamed the "loop abortion ring," portrayed abortion as part of the criminal underworld. The investigation exposed corruption in both the police force and the prosecutor's office; Martin's daughter was murdered by a police officer afraid of having his bribe taking discovered.[35] The state charged at least nine people, including two physicians and two nurses. Discovery provoked one physician, who performed abortions for Martin, and his wife, a nurse and his assistant, to commit suicide.[36] The Chicago Daily Tribune reported the news on the front page with eye-catching headlines and photos.[37]

These stories enticed readers then and can seduce readers now. There is a danger in getting caught up in the newspaper's story, though; it is easy to recreate the journalists' lurid story line instead of analyzing it.[38] Abortion coverage helped produce the sense that organized crime threatened America. The underworld was a staple of popular news reporting, and, as Lawrence Friedman has noted, the idea of a syndicate provided "a simple and satisfying explanation for at least some of the crime that plagued the nation."[39] An illustration for an Oregon newspaper clearly connected abortion to organized crime. The sketch shows a man dressed as a gangster, with a gun in one hand and a cigar in the other; smoke, dollar signs, and a scalpel swirl around his head. In a glance the image conveys the point that the criminal element controlled abortion.[40]

Press coverage of police kicking down doors and raiding abortion offices not only thrilled the public, but also supported the state's efforts to suppress abortion by threatening women, physicians, and others. When the Chicago Daily Tribune reported that the police had thousands of Martin's patient records in their hands, they informed everyone involved that they too might be arrested and exposed. "It was the most complete set of records I ever saw," Capt. Duffy declared. "It showed all the patients, their payments, the doctors, nurses, druggists or former patients who had sent them." The paper even printed a sample of a patient record.[41] The policeman's triumph was the patient's and physician's warning. Newspapers further penalized the women in abortion cases by exposing them in their pages. Sometimes papers threatened to but refrained from printing the names of patients or witnesses in abortion cases. At other times, papers named or printed photos of the women—a practice that publicized their illegal abortions and raised questions about their sexual activities.[42]

Since the taint of sexual misbehavior dishonored women uniquely in a way that it did not dishonor men, the public identification of women


who had abortions hurt them. In one instance the prosecutor protected a cooperative female witness by withholding her name from the press while allowing the papers to name and photograph an uncooperative woman.[43] As this ploy demonstrates, prosecutors understood the dangers of public exposure to women and used it for their own purposes. Women faced more than the possibility of death when they sought abortions. The exhibition of women in these cases threatened all women who had abortions in the past or might have them in the future. Exposure in the papers and interrogation in the courtroom did not need to happen to every woman who had an abortion to make women in general understand the dangers of illegal abortion. However, the state resorted to even more intrusive methods.

On the morning of December 8, 1947, police staked out the apartment of Helen Stanko, a midwife, on the north side of Chicago. Every twenty or thirty minutes police officers picked up women as they left Stanko's office; by 10:45 they had accosted eight women. As she walked along the street away from Stanko's apartment that morning, Clara L. recalled, "I was forced to go with two men, two detectives." She explained that "one of the officers grabbed my arm. . . . They said they knew where I had been, and I should come along with them." When she objected, they showed her their badges. "One fellow even swore. . . . I still did not want to go. They said if you don't want to cause embarrassment you better go with us or we will call a paddy wagon. So I did not have any choice." Once the police brought her to the doctor's office, Clara L. said she was not "forced," but "submitted" to a gynecological exam performed by Dr. Janet Towne in the presence of a policewoman. Dr. Towne examined Clara L., determined she was pregnant, and then removed a rubber catheter placed in the cervix by Stanko. Clara L. was "too upset and nervous" at the time to remember what Dr. Towne said to her. When Towne finished, an assistant state's attorney, Nate Kinnally, and "other men" questioned her in the presence of a court reporter. Then, police drove her to a police station where she was briefly questioned and where she waited until the police brought all of the other patients to the station.[44]

Dr. Towne performed an internal pelvic exam on each woman brought to her by the police, confirmed pregnancy, and removed a rubber catheter from each of them. She found one woman bleeding profusely and one woman whose cervix had been lacerated. Once Lt. James P. Hackett received this information, he had Stanko arrested. Without a warrant, several police entered Stanko's apartment where,


Hackett recounted, they found her "working on an operating table on a patient." Police arrested Stanko, took her patient, and seized Stanko's notebook of patients' names, her instruments, and her medical table.[45] When the police brought Helen Stanko to the station, her patients identified her as their abortionist.

State officials captured women and invaded their bodies as part of their investigation into illegal abortion. The police officers in this case claimed they neither arrested the women patients caught in this raid nor forced them to be medically examined. In the prosecutor's words, they "escorted" the women in unmarked cars to Dr. Towne. Yet anyone picked up by the police or threatened with a paddy wagon, as Clara L. was, would find it difficult to distinguish between her experience and being arrested and hard to resist the ride and medical exam. Although not formally arrested, all of these women were under the control of the police and were implicitly, if not explicitly, threatened with trouble and prosecution themselves. The state argued that Clara L. "consented" to medical examination, but the state's claim was deceptive.[46] Regardless of the language used by officials in court, the police had coerced the women into going with them and into submitting to gynecological exams.

The capture and examination of Stanko's patients had been planned in advance in order to obtain solid evidence for a later criminal trial of Stanko. The state used women's bodies as evidence. Women apprehended in abortion raids in other states were also forced to endure gynecological exams.[47] Police planned the raid on Stanko after one of her patients was hospitalized,[48] but the official response was at least as punitive as protective toward women. Perhaps realizing that forcing an exam by a male physician would provoke resistance, the prosecutor arranged for Dr. Towne's assistance before the raid.[49] Towne's description during the Stanko trial of her pelvic examinations of the women, as well as the introduction into evidence of each catheter she had removed from them, provided crucial evidence for the state's prosecution of Stanko for "attempting to procure an abortion on one Clara L."[50]

Several women caught that December morning testified at Stanko's trial, and some expressed embarrassment at being questioned about their sexual lives in a public forum. Not only had they undergone the fright of being caught, questioned, and examined, the state required them to appear in court. Clara L. was named in the indictment against Helen Stanko and was the first patient to be called to the stand at the February 1948 trial. She told the court that she was a thirty-eight-year-


old factory worker and explained how the police caught her on December 8. As she described lying on a table at Stanko's office and how Stanko had inserted a "rubber tube," Clara's voice seems to have grown faint, for the court advised her, "Raise your voice a little, so that the last jurors can hear you." The prosecutor next asked,

Q: Now when you say she inserted some sort of rubber tube in you, will you tell us where she inserted that rubber tube, into what part of your body?

A: Well, I don't know, I would not know what to say.

Q: Was it between your fingers?

A: No.

Q: Tell us what part of your body the tube was inserted in?

A: In between my legs.

Q: At the knees?

A: No.

Q: Well, where? This jury I thinkwill [sic ] understand.

A: It was inserted in my privates.[51]

Clara L.'s reticence makes it evident that she found it difficult and shameful to discuss her body, her sexual organs, and the abortion procedure in a public courtroom. The prosecutor asked her to name and discuss the treatment of the sexual parts of her body, something never discussed in public—and for many women never in private either. His sarcastic questions were designed to shame. The jury convicted Stanko of attempting to procure an abortion, and the judge sentenced her to five to ten years in prison. She appealed her case to the Illinois Supreme Court, which overturned the conviction. When Stanko was retried, Clara L. and other patients had to testify again. Stanko was convicted a second time.[52]

Only Stanko's defense attorney protested the treatment of the women who had sought abortions from Stanko. At the beginning of Stanko's first trial, her lawyer submitted affidavits arguing that each of her patients had been "illegally arrested and detained, was coerced and forced to submit to physical examination against her will and questioned and forced to make statements against this defendant against her will." The defense argued that since the evidence had been illegally obtained, the witnesses should not be allowed to testify. Throughout the trial and in appeals to the Illinois Supreme Court, the defense attorney suggested that Stanko's patients had been forced to testify against their will, not voluntarily as the state claimed.[53]


The personal violation of each of these eight women during a criminal investigation evoked no judicial concern, even at the highest levels of the judiciary. The treatment of women in the Stanko case suggests that the state did not respect the bodily integrity of its citizens. And, at least in abortion cases, women did not have any rights against involuntary invasion of their bodies. When Stanko appealed to the Illinois Supreme Court twice for her convictions resulting from the 1947 raid, the court expressed no objection to the capturing of women by the police or to the forced gynecological examinations. The Illinois Supreme Court reviewed the two trials of Stanko and overturned her convictions in both cases, once for prejudicial comments by the prosecutor, an erroneous instruction to the jury, and "total disregard of the rights" of the defendant, and once because she had been convicted for a crime other than the one she committed. In both opinions, the court avoided scrutinizing the treatment of the women whose testimony was coerced by the state.[54]

The methods of obtaining evidence and the use of women as witnesses against abortionists punished women by frightening, shaming, and exposing them. In some cases police arrested and fingerprinted women who had abortions; in others prosecutors threatened to prosecute them if they refused to talk.[55] Women were physically captured and endured gynecological exams under duress. As the prosecutor remarked in the Martin case, these women had their abortions and then "went about their daily walk of life."[56] When government authorities intervened in abortion, they transformed this part of daily life, this resolution of a personal crisis in a doctor's office, into a public shame.

As women were being caught and dragged into police stations and courtrooms during this crackdown on abortion, physicians began to realize the personal dangers of being involved, however indirectly, in abortion. Physicians had been protected during the Martin and Kuder trial, but state authorities began to threaten doctors who referred patients to abortionists. If referring physicians could be silenced, women's access to professional abortionists might be cut off. In 1942, New York's governor signed an act aimed at the medical community's practice of referring patients to abortionists. The act made the doctor who gave women information about abortion "equally guilty" to those who performed abortions, and New York police arrested physicians who referred patients to abortionists.[57] During a 1954 Chicago investigation, the prosecutor planned to question scores of doctors connected to a local physician-abortionist. "A large percentage of the medical profes-


sion," he charged, "is winking at the violation of abortion laws." Furthermore, "he warns," the newspaper reported, "that doctors can be charged as accessories to criminal violations if they steer such patients." Note the language used: what physicians might call referring and women might have seen as helping, the prosecutor labeled "steering"—a word suggesting organized crime. Despite the fact that the prosecutor used reporters to send messages to physicians, he admonished them not to photograph the physicians and simultaneously promised doctors protection from publicity if they cooperated and hounding by the press if they did not.[58] No doubt some doctors stopped telling patients of abortionists.

At the same time, abortion was being linked to communism ideo-logically. Critics invariably stigmatized radicals and their movements by associating them with sexual license and deviance. This was part of a long history of attacking feminists and radical women by smearing their sexual reputations. One child of communist parents remembers people jeering about "free love" at her mother.[59]Time magazine remarked in an article about a convicted abortionist that, in the 1920s, "abortion was de rigeur among far left Communists all over the world, as no good female revolutionary was supposed to be hampered by children." Time's analysis denied the maternalism of female communists and implied that all leftist women had abortions as a matter of course.[60] Other popular coverage of abortion reported on the legalization of abortion in the Soviet Union, thus connecting a crime in America to communism.[61] Conservative organizations and politicians suppressed discussion of abortion at one college campus.[62]

Furthermore, the national political climate taught Americans to beware of nonconformity. As federal, state, and local agencies went on anticommunist crusades in the 1940s and 1950s, physicians, like everyone else, learned, often unconsciously, that those with unconventional views could be targeted and forced out of their jobs. The pursuit of college professors, scientists, and other professionals served as examples to all of how prestigious and respected professions could suddenly come under state scrutiny and attack. When prosecutors threatened to track down doctors and arrest them, there was every reason to believe them. If professors and state department officials could lose their positions, physicians could imagine the state revoking physicians' medical licenses.[63] The medical profession was traditionally conservative; it had fought off the Sheppard-Towner Act and national health insurance by labeling them "socialized" medicine.[64] Yet the small section of the pro-


fession with radical or liberal leanings had reason to fear being singled out by authorities.

When a New York prosecutor initiated an investigation as a result of a physician's comments at a Planned Parenthood meeting, it matched the methods used by the FBI and Congress when chasing "Communists." A prominent physician had spoken at a function of Planned Parenthood and the Brooklyn chapter of the National Council of Jewish Women. Every year, Dr. Louis M. Hellman remarked, about six hundred women came to the county hospital following induced abortions. The prosecutor immediately opened an investigation and called Dr. Hellman to the grand jury. because, as he explained, the state required hospitals to report all suspected illegal abortions for investigation, but the hospital had reported only thirty cases, not six hundred. Though the inquiry did not result in any indictments or prosecution, the medical community learned that it was under official surveillance. One suspects that pro-birth control and Jewish organizations were of particular interest to local authorities.[65]

Hospital Rules

In this political climate, medicine turned away from the liberalizing trends of the Depression era and adopted a more conservative stance toward abortion. Medical policy toward and practice of therapeutic abortions changed significantly during the 1940s and 1950s as hospitals invented new rules to regulate therapeutic abortion. Physicians and their institutions patrolled the borders dividing legal and illegal abortion in new ways as obstetric departments created therapeutic abortion committees to control and reduce the practice of abortion. In the past, in the privacy of the physician's office, physicians performed therapeutic abortions without interference. Although the profession urged physicians to consult with other doctors before inducing abortions, nothing required physicians to justify their intentions to anyone. Therapeutic abortion committees grew out of the structural changes of the 1920s coupled with the political conservatism of the 1040s and 1950s, not out of a breakdown in medical consensus.

As obstetrical departments instituted therapeutic abortion committees in the 1940s and 1950s, hospitals voluntarily took on a new role in enforcing the abortion laws and acted as an arm of the state. Hospital


abortion committees defined when an abortion was therapeutic and legal, regulated physicians who performed abortions, and standardized the accepted indications for abortion in each hospital. They served as "gatekeepers," granting or denying women access to safe, legal, therapeutic abortions performed in hospitals. The new structure legitimated some therapeutic abortions by preventing others. As hospitals defined and controlled therapeutic abortions performed inside hospitals, they simultaneously defined all abortions performed outside the hospital as illegal.

A Detroit hospital may have created the first therapeutic abortion committee. A 1939 meeting of obstetricians and gynecologists heard the earliest known report of such a committee. Hospital abortion committees were not first formed in the 1950s, but became nearly universal then; they originated more than a decade earlier than generally thought. Dr. Albert E. Catherwood of Detroit reported that Harper Hospital had set up a "permanent therapeutic abortion committee." "Formerly," Catherwood explained, "it was not difficult for any one who wanted to do a therapeutic abortion to get one or two doctors to agree with him." Some physicians, Catherwood and his colleagues believed, performed abortions too readily and too frequently. Under the new policy, the physician who proposed to do a therapeutic abortion presented the case to the hospital's committee, which deliberated on whether or not an abortion should be performed. The committee also considered whether sterilizations should be performed. Catherwood concluded with pride, "We think it a very satisfactory method, and have noted that since the appointment of this permanent committee, the number of therapeutic abortions in Harper Hospital has been greatly reduced."[66] Other hospitals soon adopted Harper Hospital's innovation in abortion control.

Early discussions of therapeutic abortion committees show that physicians feared prosecution for therapeutic abortion and wanted the legal protection afforded by such a committee. During this first reported discussion, Dr. H. Close Hesseltine of the University of Chicago and the Chicago Lying-In Hospital called the therapeutic abortion committee "a very good idea" and noted the "medico-legal protection" it offered.[67] After hearing about Harper Hospital's committee, physicians at Florence Crittenton Hospital in Detroit became worried about their own legal vulnerability. The doctors investigated Michigan law and learned that therapeutic abortion was legal, but concluded that if prosecuted, "the physician had no legal protection." The obstetri-


cians and gynecologists reviewed the therapeutic abortions in their hospital and judged that some "could have been avoided." Faced with this evidence, the hospital imitated Harper Hospital and formed its own committee of three obstetrician-gynecologists to review therapeutic abortion cases and "to protect the physician from inadvertent lapses, medical or legal."[68]

The founders of therapeutic abortion committees and their legal advisers assumed that the law required great caution and that the exception allowing therapeutic abortions would be narrowly interpreted. Physicians never cited a single American case of a doctor being prosecuted for performing a therapeutic abortion in a hospital—nor have I found any—yet they pointed to the need to protect physicians and hospitals from prosecution as the reason for forming therapeutic abortion committees. It seems likely that their fears grew out of traditional concerns about the legal dangers of abortion and the trial of Dr. Aleck Bourne in England.

The famous trial in 1938 of Dr. Bourne for inducing a therapeutic abortion for a fourteen-year-old rape victim may have been the immediate event that inspired hospitals and physicians to examine their policies toward therapeutic abortion and attempt to control its practice. Although none of the published discussion of therapeutic abortion committees explicitly mentioned the Bourne case, the timing of the creation of the first committees suggests a link. Bourne had been arrested for performing a therapeutic abortion, prosecuted, and acquitted during the summer of 1938. It was at a 1939 medical meeting that the idea and formation of a hospital therapeutic abortion committee was first announced. The Bourne trial was no obscure case, but one reported in both popular and medical journals in 1938. Newsweek, Time , the New York Times , and JAMA all covered the case. Bourne's was a test case that grew out of a larger social movement to decriminalize abortion in England. He and his supporters hoped to win legal recognition of a more liberal interpretation of the abortion laws. Through the Bourne case, the American public learned of the existence of British medical support for liberalizing access to abortion and American physicians discovered that a reputable physician could be prosecuted for therapeutic abortion.[69]

The doctors' desire for legal protection need not have resulted in restricting the practice of therapeutic abortion, especially since there had been no case in the United States of a physician arrested for therapeutic abortion. As we have seen, the legal system had historically left the


definition of therapeutic abortion to the judgment of the medical profession. During the 1930s, reputable physicians in the United States had supported a broadening of the acceptable indications for therapeutic abortion. Organized medicine could have promoted the liberal interpretation of indications for therapeutic abortion put forward by doctors like Taussig and Bourne. Hospitals and their attorneys could have planned to use the precedent created by the Bourne case if American officials ever prosecuted a physician or hospital for the performance of a therapeutic abortion in a hospital. These strategies, however, were not pursued. The political conservatism of the period made it increasingly unlikely that the medical profession would follow such a bold course.

The proponents of abortion committees wanted more than legal protection, however; they wanted moral protection for the therapeutic abortions that were performed. When Dr. Hesseltine of Chicago first heard of the committee idea, he noted that "it would give moral support" to those involved in therapeutic abortion.[70] When Doctors Harry A. Pearse and Harold A. Ott described the abortion committee at Florence Crittenton Hospital, they observed that the committee would "conduct its deliberations on a high ethical plane, thereby avoiding the imputation of immorality to the procedures it approves. Thus," they assured their audience, "the attending physician can be certain that any abortion . . . which he may do with the committee's approval will be legally defensible, medically indicated, and morally acceptable " (emphasis added). Chicago's Rudolph Holmes applauded the committee plan for insuring the morality of therapeutic abortions. "It would be a great protection to the operator as well as a deterrent to dangerous aspersions by outsiders," he remarked.[71] The committees could make some abortions morally pure and protect medical reputations from attack. Therapeutic abortion committees not only gave their stamp of approval to a select number of abortions, they gave the procedure and the doctor their blessings.

Therapeutic abortion committees provided a way for some members of the obstetrics and gynecology department to impose their views on their colleagues. The new system institutionalized conservative medical views about abortion. When Pearse and Ott explained why Florence Crittenton had created a therapeutic abortion committee in 1940, they pointed to the difficulty of convincing doctors to "curtai[l]" their practice of abortion for preferred patients. Some physicians performed therapeutic abortions in response to the needs of their patients. "Humanitarian impulses cloud professional vision," Pearse and Ott reported, and


"the special pleas of intimately known patients" caused physicians' judgment to "laps[e]." Some hospital staff decided that "kindly counsel" should be given to those physicians they deemed unaware of the ambiguous nature of the law. Moral suasion, however, failed to convince these doctors to cease performing therapeutic abortions without strict medical indications. The doctors soon discovered that their advice was "not cheerfully accepted, [but] more frequently is disregarded" by their colleagues.[72] That physicians ignored unasked-for advice is not surprising. Physicians had long disagreed on the indications for therapeutic abortion, as they disagreed on diagnosis and therapeutics in other areas of medicine, but each practiced according to his (or her) best medical judgment. The formation of therapeutic abortion committees, which subjected doctors to oversight, was a new and conservative reform enacted when "kindly counsel" failed to bring about change.

Pearse and Ott detailed the review process of one of the earliest therapeutic abortion committees. Although designed to bring conformity to medical practice in the hospital, the committee nonetheless ran into controversy. In 1940, Florence Crittenton had created a committee of three obstetrician-gynecologists to decide whether or not to allow therapeutic abortions. A physician who wanted approval for a therapeutic abortion submitted a letter to the committee along with the medical indications for the procedure and the recommendations of consultants. The committee then circulated the request among its members. The chairman reviewed the comments and met with members if there were disagreements. If the committee approved a request, the request and the letter of approval were included in the patient's permanent medical record. In 1946, in response to a rise in the number of sterilization procedures, the committee was given the additional task of approving or vetoing sterilizations, a move suggesting that physicians were again listening to patients who wanted to end their childbearing. The following year the committee had to be reorganized into an anonymous committee in order to put a stop to the pleas and complaints being directed at the head of the department whenever a request was denied.[73]

The new structure regulating therapeutic abortions in the hospital limited their number while preserving a small area in which some specialists could still practice legal abortion. Therapeutic abortion committees helped take legal abortion out of the hands of general practitioners and private, nonhospital-based practice and place it in the control of hospital-based specialists in obstetrics. Hospital abortion committees, generally composed of specialists in obstetrics and chiefs


of hospital divisions, regulated the medical practice of their colleagues and were particularly concerned about the practices of general practitioners. As these specialists checked the abortion practices of general practitioners, they protected their own right to do therapeutic abortions. Obstetricians regarded themselves, researchers observed, "vis-à-vis the general practitioner, the guardians of standards of practice in this area."[74] Family doctors, because of their knowledge of an entire family and its problems, may have been more likely to consider the whole situation of a woman, rather than sticking to rigidly defined medical indications.[75] The tradition of listening to a patient's story and taking her whole life situation into consideration when reaching medical decisions was being delegitimated. The requirement that physicians obtain the approval of their peers (or superiors) through the committee system changed the relationship between women and their doctors.

During the 1940s and 1950s, hospitals across the nation instituted their own committees to regulate and reduce the practice of therapeutic abortion. The Committee on Abortion created in the early 1940s at the Monmouth Memorial Hospital in Long Branch, New Jersey, was designed "to eliminate the questionable cases." When the California Hospital in Los Angeles established its committee in 1948, the committee rejected half of the proposed therapeutic abortions, thus drastically cutting the number of therapeutic abortions performed there from approximately fifteen per year to six. In 1950, the University of Virginia Hospital, which had averaged over eleven therapeutic abortions per year, created a board to review all cases recommended for psychiatric reasons; a year later, only one abortion had been performed. After Sloane Hospital in New York instituted a review board in 1955, fewer than half as many therapeutic abortions were performed over the next five years. Chicago's Mt. Sinai Hospital formed an anonymous committee in 1956; the following year the number of therapeutic abortions fell from fifteen per year to three.[76]

Probably more important than refusing to authorize therapeutic abortion in specific cases, committees discouraged physicians from seeking approval for abortions. Requiring physicians to commit their medical judgment regarding pregnancy and abortion to writing and then submit supportive arguments based on strict medical indications to a committee for review eliminated some cases immediately. The surveillance itself indicated distrust of physicians and distaste for the procedure. As Dr. Robert A. MacKenzie of Monmouth Memorial Hospital in New Jersey pointed out, "No physician is going to ask the Commit-


tee to consider a case which he has not carefully studied, nor about which he does not feel strongly." Physicians who believed in providing therapeutic abortions on more liberal grounds would be unlikely to submit patients to the committee. As a committee approved and disapproved cases, doctors learned not to submit cases like those vetoed in the past. Dr. Alan F. Guttmacher reported that many requests never reached the abortion committee at Mt. Sinai Hospital in New York because doctors asked committee members in advance how they would react to certain requests. "Many physicians are discouraged by telephone conversation or corridor consultation with a single Committee member," Guttmacher reported.[77]

Moreover, abortion committees discouraged women from seeking therapeutic abortions. MacKenzie's report of his hospital's abortion committee made this aspect of its work explicit: "No woman will consent to be taken to the hospital for possible examination and interrogation unless she desperately feels the need for help."[78] Consciously built into the review process were procedures that could be expected to embarrass women patients. Women might have to endure both physical examinations and verbal questioning from several doctors before receiving a therapeutic abortion. This policy was justified, in the minds of some, because some women tried to "abuse" the law and obtain therapeutic abortions for nonmedical reasons. Yet it treated all women as suspects and forced all of them to endure repeated examinations. The University of Virginia Hospital's abortion board reviewed cases with psychiatric indications by having each of the board's three members interview the woman, compare notes, and then decide her fate.[79] Women whose cases might pass muster might prefer to avoid this trying process.

Not only physicians, but hospitals, came under scrutiny for the number of therapeutic abortions performed. Doctors Samuel A. Cosgrove and Patricia A. Carter of the Margaret Hague Maternity Hospital in New Jersey started a competition between hospitals with a 1944 article. The physicians opposed Taussig's call for a broadening of the indications for therapeutic abortion. The authors called for strictly limiting the practice of therapeutic abortion to the rare cases when "the pregnancy threatens the life of the mother imminently ." Physicians performed so many abortions in the nation's teaching hospitals, Cosgrove and Carter charged, that they could not teach medical students an "abhorrence of abortion in general." Their article presented a table showing the incidence of therapeutic abortion compared to the number of deliveries at seven hospitals. The Johns Hopkins University topped the


list with a therapeutic abortion to delivery ratio of 1:35. Margaret Hague proudly came out with the lowest ratio, 1 abortion to 16,750 deliveries.[80]

The medical monitoring of therapeutic abortions is a manifestation of the rise of both conservative medical attitudes toward therapeutic abortion and McCarthyism within medicine. Although Cosgrove and Carter denied wishing to impose their moral values on others, the article's red-baiting and inflammatory language said otherwise. They connected Taussig's call for abortion law reform to Russia and its "amoral and unethical" society. They stigmatized therapeutic abortion—a legal and legitimate procedure—by renaming it "abortion-murder." Nineteenth-century antiabortion activists used this type of language in their campaign to criminalize abortion; their descendants used it to condemn abortions performed to save a pregnant woman's life, abortions long approved by the profession.[81] The article provided a seemingly objective way to judge a hospital's ethical standards. Though a few objected to the language of "murder" and to the insinuation that a comparatively high therapeutic abortion rate meant that a hospital condoned immoral and illegal medical practices,[82] concern about these rates contributed to the restriction of therapeutic abortion.

Political pressure clearly influenced medical policy and practice. Hospital administrators felt pressed by both colleagues and state officials to keep their level of therapeutic abortions down and in line with that of other hospitals. Guttmacher reported forming the abortion board at Mt. Sinai Hospital in 1952 because "it was rumored around New York . . . that Mt. Sinai was an 'easy' place in which to have an abortion." He did not want his obstetrical service's fame, he said, to derive from "its great leniency toward abortion!" He and the other obstetricians decided, Guttmacher reported, "to substitute a conservative, restrictive policy on therapeutic abortion for the liberal, permissive one then in force." Others told of one psychiatrist's experience: the first time he recommended a therapeutic abortion, the district attorney's office called him and told him that he "better watch his step." Dr. Theodore Lidz, of Yale University School of Medicine, noted there was "a tendency on the part of the hospital not to wish to have its rate higher than the rest of the hospitals in the state, because there might be pressure from someone in the state government . Thus there is constant care to keep the rates lower" (emphasis added). And, he thought the rates were "dropping" as a result.[83] Doctors at Yale had to be acutely aware of the danger of being associated with abortion or communism given the political situation in Connecticut, where the Catholic Church


organized with state politicians to keep birth control illegal and to silence physicians who opposed them.[84]

A few physicians voiced discontent over the shift to a conservative attitude toward therapeutic abortion. At one meeting, several doctors defended therapeutic abortion on more liberal grounds and agreed upon the necessity of considering social and economic conditions. Dr. George H. Ryder's rhetorical questions showed his commitment to the values that had dominated during the Depression era. "Are we to limit therapeutic abortions to medical indications only?" he demanded. "What about hard-working women in poor health, with little money, who already have five or six children? . . . Shall we force them to go through additional pregnancies simply because we think that they shall not die in childbirth?" Dr. Edward A. Schumann went to the heart of the matter: physicians were "apt to be too hyperconservative and think too greatly about the fetus." If pregnancy threatened "disability or death" to a patient or family member, he would "have a small inconsequential fetus removed without concern." These doctors did not doubt the primacy of the pregnant woman's life or the legitimacy of therapeutic abortion. Their views, however, were out of power.[85]

Legal Challenges to the Abortion Laws

Twelve to fifteen police officers invaded Timanus's office on August 21, 1950, burst into his examining room, where they found a patient on an operating table with her skirt up, grabbed all of the patient records, and brought everyone in the office—Timanus, his employees, and his patients—to the police station for interrogation. Six years later, on August 28, 1956, Detroit police raided Dr. Keemer's office, arrested sixteen of his patients, Keemer, his new partner, and two nurses, and collected his patient records.[86] Both physicians had practiced abortion in their cities undisturbed for years, Timanus for almost twenty-five years and Keemer for over ten. Police and prosecutors in Baltimore and Detroit investigated and prosecuted these doctors and their associates in exactly the same way state authorities had in Chicago. Their trials, however, were distinctly different from most abortion cases.

In 1951 and 1958, Dr. Timanus and Dr. Keemer used their own criminal trials as forums for challenging American law on abortion. Both doctors defended themselves against charges of abortion and conspir-


ing to commit abortion by arguing that the abortions were legal. (Usually defendants simply denied having performed abortions.) State laws on abortion provided exceptions for abortions performed for medical reasons, but when a therapeutic abortion was "indicated" was unclear. The Timanus and Keemer cases centered on the definition of a legal, "therapeutic" abortion versus an illegal, "criminal" abortion. Both could have been important test cases of the abortion law, perhaps comparable to the Bourne case in England.

Analysis of the trials of Timanus and Keemer reveals the power of medicine to define the law. The distinction between legal and illegal abortions had always been gray. Law did not impose a line dividing legal and illegal, but looked to medicine to mark that line. These cases clarified and shifted the borderline between legal and illegal abortions; in the end, the definition of a therapeutic abortion narrowed to conform to hospital policy and the space in which physicians could legally perform abortions shrank.

As historical records, criminal trial records are quite different from the inquests that were crucial for uncovering abortion in the early twentieth century. At inquests, witnesses were allowed to talk in their own way. The coroner asked questions, but at inquests the rules of criminal trials did not apply, and lawyers rarely cross-examined witnesses. What is said in the courtroom, in contrast, is more planned and coordinated; it is rarely spontaneous.[87] Legal records contain significant information, and I have extracted much from them for this history, but criminal trial records are partial and constructed.

In the Keemer and Timanus cases, the lawyers for the state and defense each constructed their case to present competing definitions of legal abortion. The jury's decision in a criminal trial is based on a sifting of the evidence, but a trial is more than the objective presentation of facts. Every trial contains two sides and each presents not only "facts," but also an argument for the jury. The rules of the courtroom further constrain the presentation of information; the details revealed in court are thus always incomplete. Crucial information may be kept out. The trial is constructed by the lawyers in order to convince the jury of their argument and win—either a conviction for the prosecution or an acquittal for the defense. Lawyers try to control the picture they create and to ask only questions which yield the desired answers.[88] Yet the stories that lawyers try to create break apart as witnesses inject their own concerns into the proceedings. The Timanus case offers an example of how lawyers attempted to construct particular stories and how other


stories nonetheless disrupted the neat narrative that the attorneys tried to tell. We can best see how the prosecution and the defense constructed a story about abortion in Timanus's 1951 trial, for which there is a transcript.[89]

The state built its case around the testimony of ten of Timanus's patients, women arrested during the raid or located through seized patient records. In questioning each woman about her pregnancy and abortion, the prosecutor emphasized that these abortions had not been performed for any physical reason. The prosecutor asked Mrs. Eleanor B. and the others, "Was there anything wrong with you physically, any reason why you could not have your child physically?" Mrs. B. answered, "Physically, no."[90]

The defense argued that Dr. Timanus performed legal abortions. He practiced only in consultation with other physicians and induced abortions for reasons of mental health, an acceptable indication. In contrast to the state's construction of therapeutic abortion, the defense referred to the growing acceptance of psychiatric indications for therapeutic abortion. When the defense attorneys cross-examined the women, they highlighted the mental strain of each patient. The attorney asked Mrs. B.,

Q: Why did you want to have your pregnancy interrupted?

A: Well, I wasn't living with my husband. . . .

Q: And it would have upset you terrifically if you had a child?

A: Yes, sir, it would.

Q: What was your mental and nervous state at the time you found out you were pregnant?

A: I wasn't in a very good mental state of mind.

Q: You mean you were pretty desperate?

A: Yes, sir.[91]

With each witness, the defense confirmed that she had first seen another physician who had referred her to Dr. Timanus and that she had been nervous and under great mental distress at the time that she went to Timanus for an abortion. The defense displayed letters from physicians referring patients to Dr. Timanus for "treatment" to show that he had performed abortions only in consultation with other physicians.[92]

As the two sides built their cases, along the way they unintentionally drew out another story: the story of women's lives and the situations that made them need abortions. This story had no place in the plots being created by the opposing lawyers, but the witnesses defied the


story lines being produced and inserted their own voices. The female perspective had no legal relevance, though it was key to Timanus's practice and the importance of distinguishing legal and illegal abortion. In asking questions designed to show whether the abortions were justified or not, attorneys drew out the women's own reasons for seeking abortions. The defense attorney asked Mrs. B. why she went to the doctor who referred her to Timanus.

A: What did I go for? . . . Because I had missed a menstrual period.

Q: Well, why did you want to have your pregnancy interrupted?

A: Well, I wasn't living with my husband.

Here is the answer: the importance of an impending divorce in making reproductive decisions seemed completely obvious to the woman who sought the abortion. The defense attorney, however, wanted to draw out the woman's mental state in order to translate the social situation into acceptable medical terms.

Q: And it would have upset you terrifically if you had a child?

A: Yes, sir, it would.[93]

Naoma G. candidly answered that she had gone to Dr. Timanus in 1950 "to have an abortion performed." The defense attorney clarified her feelings,

Q:      You weren't married, were you? . . . And you were really pretty much distressed about it weren't you?

A:      That is right, well, anybody would.[94]

The ostracism an unmarried woman could expect for bearing a child made abortion necessary for this woman. "Anybody" would feel the same way and, presumably, do the same thing. Again, the defense attorney had to medicalize the social problem, by emphasizing her mental health, in order to claim that the abortion had been performed for medical reasons.

Miss Anne Adams, Timanus's nurse and codefendant, agreed that all of Timanus's patients were upset.

A: I can almost make a blanket statement that every patient that comes to us is highly emotional, is upset with fears. . . . But the procedure is unknown to them, they need reassurance that they will not—it is just like everything else. You are afraid of the unknown. They don't know what is going to happen. Any procedure is feared by any one who associates pain with it.[95]


The nurse first confirmed that all of Timanus's patients were upset, but then stopped herself midsentence as she described their feelings. I suspect that the women "need[ed] reassurance" that they would not be hurt. All patients feared operations; these patients may have been especially fearful since the popular press consistently portrayed abortion as deadly. Adams could not refer to the dangers associated with abortion, however, because she was testifying to the safety, modernity, and legality of Timanus's practice. The story line that the lawyers were working to create in the courtroom, and that she wanted to see succeed, interfered with her desire to tell the female story.

Nonetheless, Adams inserted a woman's perspective throughout her testimony and openly expressed her belief in the need for abortion for single women. She had known of "a single girl" who had been unable to get an abortion. She "had no way of getting married or taking care of an unwanted child," Adams told the court. "The social stigma attached to it upset her; she had no family to turn to, and she found the only answer was to do away with herself." This terrible event explained the importance of doctors like Timanus, "who understood the circumstances of unmarried women." It also explained her interest in later working with him.[96]

Adams's lawyer asked, "Have you any guilt on your own conscience? Just face the jury and tell them." She declared, "I have no feeling of guilt. I feel that Dr. Timanus is doing a great social need, and I am sure any one who has come in contact with patients and has any feeling for any one who is in duress and stress—" The prosecutor interrupted her: "I object to this." The judge sustained him. The rules of the courtroom cut off and silenced Adams's talk about abortion as a "social need."[97] In the past, juries had been understanding, and prosecutors knew that it was nearly impossible to convict accused abortionists unless a woman had died. This prosecutor did not want Adams to sway the jury toward a sympathetic view of the doctor who provided abortions. This moment starkly shows the constructed and controlled nature of testimony in the courtroom. The nurse was not allowed to speak of a woman's view of pregnancy and abortion nor to suggest the need for compassion.

The testimony of Nurse Adams is exceptional. Nurses played an important role in the abortion trade and were frequently arrested during raids, but we know little about them. This source gives us unique insight into the thinking of nurses. Nurse Adams's remarks suggest a special sensitivity to women's need for abortion and that her work held


deep meaning for her because of that gendered awareness. Nurses working in regular medical offices sometimes gave patients the names of abortionists; nurses who worked with abortionists eased women's worries and cared for patients before, during, and after the procedure.[98]

The state brought in physicians who contradicted Timanus's claim that he practiced legally. Most damning was the testimony of Dr. Jerome E. Goodman, a gynecologist who appeared as a medical expert. The doctor explained what he would have done if he believed a pregnancy should be "discontinue[d]."

A: Well, I would first admit her to the hospital, get a consultation on her. And in our hospital, before an abortion, what we call a therapeutic abortion, can be performed you have to get two letters, one from the attendant on the staff, and then the case is brought up before a committee, and they, in turn, must pass upon whether a therapeutic abortion is necessary or not.[99]

Dr. Goodman described what had fast become the norm in hospitals across the country. According to him, a therapeutic abortion had less to do with a diagnosis made by a physician than with hospital policy. Therapeutic abortion committees reviewed physicians' decisions to perform abortions and could veto them. Successfully going through the process of review by committee made an abortion legitimate and, thus, "therapeutic." Implicitly, a doctor who had failed to go through a committee had performed an illegal abortion.

When the defense questioned Goodman about his own referral of patients to Timanus, he denied it. Yet one patient testified that the doctor had arranged her abortion by phone, Timanus's secretary confirmed the call, and his name appeared in Timanus's records. Timanus remembered the doctor's betrayal years later. Being abandoned by colleagues who had relied on him seemed to hurt Timanus more than the raid, the trial, and his imprisonment.[100]

The prosecution presented a second gynecologist to bolster its case that the abortions performed by Timanus could not be considered medically necessary. Dr. John Hermon Long had performed a number of therapeutic abortions during his twenty years of practice and what he described did not match Dr. Timanus's practices. The judge questioned him.


In your experience what has been the reason for them?


Tuberculosis, advanced kidney disease, severe diabetes. . . .


Where is it done?


In the hospital.


Mr. Orth, the prosecuting attorney, continued the questioning:

Q: What steps do you take before the operation is performed?

A: Ordinarily patients are referred to me by a medical man because they need it, and I don't determine the reason for it actually. I never do myself, but I am merely the surgeon in the case.

Q: All your therapeutic abortions are performed at a hospital?

A: Right.

Q: What hospital is that?

A: Well, usually at Johns Hopkins.[101]

Dr. Long's testimony emphasized two key points for the prosecution: first, therapeutic abortions were performed for diseases and physical reasons only—he listed three. Second, therapeutic abortions were performed in hospitals. Reputable physicians did not perform abortions in their own offices.

The definition of a therapeutic abortion given by Doctors Long and Goodman suggested that physicians universally agreed on the indications for abortion and the procedures to be followed. The two medical witnesses did not discuss existing disagreements within medicine over the indications for therapeutic abortion and did not admit that some doctors accepted social, economic, and psychiatric indications for therapeutic abortion. Medical experts never voluntarily revealed professional disagreements in the courtroom because it undermined their authority, and the defense attorneys did not ask the questions needed to expose the medical debate.[102] The defense doomed its case by failing to bring in their own expert witnesses to testify to the validity of performing therapeutic abortions for mental health. Indeed, by the time of this trial in 1951, psychiatric indications for therapeutic abortion were increasingly common, but the jury never heard about this trend.[103]

Finally, Timanus helped convict himself by clinging to his own sense of professional ethics: he refused to call to the witness stand the doctors who had referred patients to him. Instead, he protected the physicians who had relied upon him and hoped they would voluntarily testify to the legitimacy of his practice. Timanus wrote personal letters asking for support from 353 doctors who had referred patients. None came forward.[104] No one wanted to risk trouble with the law or the profession by defending an accused abortionist. The appearance of colleagues would have shown Timanus to be a member of a respected medical community and a specialist. That some names appeared in the newspapers probably scared them all.[105]

According to the medical experts at this trial, therapeutic abortions


were performed for physical indications only, had gone through a hospital review procedure, and were only performed in hospitals. Hospital policy, in the end, convicted Timanus and his employees of illegal abortion. The Maryland Court of Appeals upheld conviction and specifically pointed out that the defense had presented no evidence showing that the abortions had been performed for physical reasons. Timanus was imprisoned for four and a half months and fined $5,000. Anne Adams, the nurse, and Bessie E. Nelson, the secretary, were each fined $1,000 plus costs.[106]

Keemer's trial followed the lines of Timanus's trial. Against legal advice, Keemer insisted on making the legal exception for therapeutic abortion the center of his defense. He too argued that he performed legal, therapeutic abortions for reasons of mental health. Keemer decided to turn his trial into a test case. Unlike Timanus, Keemer had three physicians who testified to Keemer's competency and, most important, agreed that an unwanted pregnancy could threaten a woman's mental and physical health and, thus, her life. However, two other doctors who had agreed to testify for Keemer failed to show up. No medical experts refuted Keemer's claim that these abortions were medically justified. Only four of Keemer's patients testified for the state against him. "Dozens of enraged women," Keemer recalled, told him of being bothered by the police, but many refused to cooperate. Three black patients testified that the stressful circumstances of their lives at the time made having a child "dangerous."[107]

When the prosecutor questioned a young white patient of Keemer's, however, a racist element entered the proceedings. As the prosecutor emphasized that a black man had touched the white woman's "private parts," Keemer later wrote, he "knew . . . that justice was not to be done." Racist notions about black sexual aggression and the need to protect white womanhood from black men ruined Keemer's attempt to make his trial a test case for abortion. Keemer, his colleague, and his assistants were convicted and sent to prison. Keemer served fourteen months.[108]

Oddly, given his political goal of making his case a test of the abortion laws, Keemer did not appeal to the Michigan State Supreme Court. Keemer and his colleague distributed a statement to the press defending themselves as doctors who did "everything in our knowledge as doctors to alleviate physical and mental suffering," but they took it no further. Keemer's attorney believed it would be futile, and Keemer could not pay for an appeal. But more than that, he refused to


allow his community to raise the funds for an appeal. "No, I won't accept any defense fund," Keemer later recalled telling a friend who offered to raise money. "A defense fund is just not me."[109] Like Timanus, Keemer envisioned this test case as an individual effort, not a collective one, and, like Timanus, he clung to his own ideas of respectability. Given Keemer's involvement in the Socialist Workers Party and the civil rights movement, this seems a strangely individualistic political move.[110] His personality and his profession precluded enlarging his fight.

In the absence of a professional movement and a social movement advocating liberalization of the abortion laws, neither Timanus's nor Keemer's cases could become test cases. Instead, they confirmed the new restrictiveness of the era. For a case to test the law, it needs to focus on an issue around which lawyers and activists are working to "educate" the courts and society. To have an impact, the case needs to be publicized. For example, when Margaret Sanger claimed women's right to contraceptives in the Woman Rebel in 1914 and when she opened the first birth control clinic, she expected to be arrested and to use her arrest to challenge the laws against contraceptives. Brown v. Board of Education (1954), which found segregation in the schools to be unconstitutional, grew out of decades of work by the NAACP and the black civil rights movement. These test cases, which challenged and changed the law, grew out of social movements and had their organized and vocal support.[111] Though local papers covered the trials of both Keemer and Timanus, their cases were not understood as radical challenges to the law or to the new methods of suppressing abortion.[112]

For Timanus or Keemer to have successfully reversed the trend toward greater restriction of abortion, they would have needed a social movement behind them. At the very least, if they had tried to recruit other doctors to their cause or to organize sympathetic patients, they might have begun a public discussion about women's need for abortions. As it was, their refusal to do so ensured that the radical potential of their cases went unnoticed, and their efforts were quickly forgotten.

The English example offers a contrast. In the 1930s, Dr. Aleck Bourne succeeded in expanding the indications for therapeutic abortion as a result of his criminal trial for abortion. This case had been organized; it was not one lone individual hoping for justice on the basis of his singular argument. Bourne had demanded that authorities arrest him and hoped, he said, "to establish in the eyes of the law that mental health was just as important as physical health." Bourne's trial and legal victory grew out of professional medical support for reform and femi-


nist organizing for women's reproductive rights.[113] The United States had no such movement, feminist or medical, for reform or repeal of the abortion laws until the mid-1950s and 1960s. When a handful of physicians sought arrests as a way of challenging the criminal abortion laws in the late 1960s and early 1970s, they had a larger social movement supporting them, and criminal abortion cases could become test cases.[114]

During the 1940s and 1950s, a nationwide crackdown ended the relative ease of obtaining abortions. The new repression destroyed the old system in which physicians referred patients to abortion specialists who practiced in private clinics and replaced it with new rules and regulations. Hospitals assisted the state by forming therapeutic abortion committees, which further restricted abortion practice. The state's visible interest in stopping the skilled physician-abortionists who had the trust and respect of the medical community magnified the medical community's sense that it needed to be more strict and that those who performed therapeutic abortions needed better legal protection.

Physicians and historians believe that hospitals gained authority over the decisions and practices of physicians only recently, during the 1970s and 1980s, because of new governmental regulation of health care, malpractice suits, and the entrance of corporations into the medical system.[115] Yet therapeutic abortion committees show that hospitals gained control over physicians and medical practice at a much earlier date. Therapeutic abortion committees brought physicians' practices under hospital scrutiny and control over thirty years earlier than generally assumed. These committees were forerunners of the oversight under which nearly all doctors work today. In the forties and fifties, formal committees reviewed and could overrule a physician's medical judgment regarding therapeutic abortion. The committees represented a new intervention in the relationship between physicians and patients and an erosion of physicians' freedom to make medical decisions.

The initial controls on doctors' practices grew out of a politically charged, pronatalist atmosphere hostile to female autonomy. Hospital review of physicians' decisions began with review of reproductive procedures. Review of obstetrical procedures was designed not only to protect women from unnecessary operations, but also to patrol women's own decision making over reproduction. During the 1930s, hospital administrators became concerned about the need to regulate obstetrical operations, partly in response to public criticism of high maternal


mortality rates· They were uniquely anxious about abortion, however. A 1935 study alerted hospital administrators of their "duty" to "prevent . . . illegal operations." By 1940, national hospital standards required physicians to consult with other physicians before performing therapeutic abortions. By 1954, the Joint Commission on Accreditation of Hospitals (JCAH) issued standards that required consultation for only three operations—all of them concerning reproduction. First-time cesarean sections, curettages or any procedure in which a "pregnancy may be interrupted," and sterilization required consultation· No other operations required review. The JCAH explained, "We are dealing here with not only prfessional [sic ] but also moral and legal considerations."[116]

Though new hospital policies restricted the practice of most physicians, they protected specialists and created a small domain in which specialists could perform legal abortions in hospitals without fear. The review of physicians' decisions to perform therapeutic abortions by committees became the mark of a legal abortion. The fact that physicians such as Keemer and Timanus performed abortions frequently and outside hospital walls made their practices, in the eyes of the profession and the law, illegal. Hospital policy delegitimated the tradition of private, out-of-hospital practice of therapeutic abortion.

Doctors Timanus and Keemer's attempts to liberalize the law through their own criminal trials were extraordinary, but their trials achieved precisely the opposite of what they had hoped for. Instead of easing the practice of abortion, the cases confirmed and strengthened the repression of the era. Their cases show how law and medicine were intertwined and mutually reinforcing. In the 1940s and 1950s, hospitals created a new apparatus for reducing the number of therapeutic abortions. This newly instituted committee system redefined the law. No state laws required hospitals to review doctors' decisions to induce abortions. Nonetheless, the creation of restrictive policies governing therapeutic abortion regulated abortion both inside and outside the hospital and delineated what was "legal" and "illegal." Timanus succinctly expressed medicine's role in the courtroom when he remarked, "The profession . . . convicted me."[117]

Women seeking abortions were subjected to more intrusion and scrutiny by both the state and the medical system. They were examined, verbally and physically, by state officials if caught during a raid, or by medical authorities if a therapeutic abortion had been recommended. The state forced women to speak of their pregnancies, sexual


partners, and abortions and to name their abortionists in court. Newspaper coverage of raids and criminal trials further exposed and shamed the women who had abortions and the people who provided them. As hospitals restricted access to therapeutic abortion in order to avoid legal trouble, their rules mirrored the state's methods of interrogating, exposing, and embarrassing women. The political atmosphere inhibited discussion of abortion and women's need for it, along with other ideas that challenged the status quo. Silencing, forced speaking, naming names, and public exposure of subversive behavior and beliefs were all characteristic of the McCarthy Era. They aptly describe the period's repression of abortion as well.


previous chapter
Chapter 6 Raids and Rules
next chapter