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.

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.