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Chapter 6 Raids and Rules
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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]

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Chapter 6 Raids and Rules
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