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]