Chapter 4
Interrogations and Investigations
In March 1916, Mrs. Carolina Petrovitis, a Lithuanian immigrant to Chicago and mother of two small children, was in terrible pain following her abortion when her friends called in Dr. Kahn.[1] The doctor asked her, "Who did it for you[?]" He "coaxed" her to answer, then told her, "if you won[']t tell me what was done to you I can't handle your case." When Petrovitis finally revealed that a midwife had performed an abortion, Dr. Maurice Kahn called for an ambulance, sent her to a hospital, told the hospital physician of the situation, and suggested he "communicate with the Coroner's office." Three police officers soon arrived to question Carolina Petrovitis. With the permission of the hospital physician, Sgt. William E. O'Connor "instructed" an intern to "tell her she is going to die." The sergeant and another officer accompanied the intern to the woman's bedside, and, as the doctor told Petrovitis of her impending death, she "started to cry—her eves watered." Sure that Petrovitis realized she was about to die, the police then collected a "dying declaration" from her in which she named the midwife who performed her abortion, told where and when it was done, the price paid, and described the instruments used. Later, the police brought in the midwife and asked Petrovitis "if this was the woman." She nodded "yes." A third police officer drew up another dying statement "covering the facts." As he read the third statement back to Carolina, she lay in bed "in pain, vomiting;" she made her "mark" on the statement. And then she died.
This chapter answers an important question in the history of repro-
duction: how did the state enforce the criminal abortion laws? From the mid-nineteenth-century criminalization of abortion through the 1930s, the state chiefly prosecuted abortionists after a woman died as a result of an illegal abortion. This account, drawn from the Cook County Coroner's Inquest into Carolina Petrovitis's death in 1916, provides an example of standard medical and investigative procedures used in criminal abortion cases. As is evident from the work of the three police officers in the Petrovitis case, the state had a strong interest in obtaining dying declarations from women who had had illegal abortions. Dying declarations were crucial pieces of evidence for the successful prosecution of criminal abortion cases, and therefore state officials focused on collecting them. For over half a century, state officials in Chicago and across the nation followed the same methods of enforcing the criminal abortion laws. Enforcement was marked by continuity. Not until the end of the Depression, as a result of changes in medicine and abortion practices in the 1930s, did the patterns of controlling abortion change.
Petrovitis's experience illustrates the intimate questioning endured by women during an official investigation into abortion. In abortion cases, the investigative procedures themselves constituted a form of control and punishment. These cases point to the gendered nature of punishment. Recognizing the impact of the criminal abortion laws on women requires looking closely at the details of women's experiences: the interactions between women and their doctors and between women and police and lower-level state officials. Our understanding of what punishment is needs to be refined and redefined, particularly in cases of women who violate sexual norms, to include more subtle methods of disciplining individuals. Gender informed the nature of punishment. The penalties imposed upon women for having illegal abortions were not fines or jail sentences, but humiliating interrogation about sexual matters by male officials—often while women were on their death beds—and public exposure of their abortions. Police, coroner's officers, and prosecutors followed standard procedures during investigations of abortion in order to achieve the larger end of putting abortionists out of business. No evidence suggests that officials consciously created or carried out these investigative procedures in order to harass women, yet the procedures were, nonetheless, punitive. For government officials, the procedures were routine. For the women subjected to these routine investigative procedures, they were frightening and shameful once-in-a-lifetime events. Moreover, media attention to abortion deaths was a
crucial component of the enforcement system; publicity warned all women that those who strayed from marriage and motherhood would suffer death and shameful publicity. Because of the singular importance of sexual purity to female social reputation and identity, public exposure could effectively punish women for the transgression of abortion.
The criminal abortion laws and their enforcement not only prohibited abortion, but demanded conformity to gender norms, which required men and women to marry, women to bear children, and men to bear the financial responsibility of children. Although most women who had abortions were married, state officials focused special attention on unwed women and their partners. Coroner's inquests into abortion deaths of unwed women reveal a state interest in forcing working-class men to marry the women they made pregnant. Historians of sexuality have given little attention to the regulation of male heterosexuality, concentrating instead on the sexual control of women and "deviants."[2] Yet, as I was surprised to find, in the late nineteenth and early twentieth centuries the state punished unmarried, working-class men whose lovers died after an abortion. The sexual double standard persisted, but the state imposed penalties upon men, in certain unusual situations, when they failed to carry out their paternal obligation to marry their pregnant lovers and head a nuclear family. Unmarried men implicated in abortion deaths, like women, endured embarrassing questions about their sexual behavior, but in general, the state punished men in more conventionally recognized ways: arresting, jailing, and prosecuting them.
State efforts to control abortion were part of a turn-of-the-century trend toward growing state intervention in sexual and family matters. In enforcing marriage when pregnancy resulted from premarital sex, state officials seemed to be willing to take over another traditional responsibility of the male patriarch. The punishment of unmarried men in cases of abortion-related deaths of unmarried women may have at the same time been a response to feminist demands for male sexual responsibility. Much of this promotion of marriage occurred in the newly created juvenile court system, which female reformers had helped create and in which they participated.[3]
The Petrovitis story reveals some of the ways in which physicians and hospitals served the state in collecting evidence in criminal abortion cases. State officials pulled physicians into a partnership in the suppression of abortion by threatening them with prosecution. Although some physicians voluntarily worked to enforce the criminal abortion laws,
others would have preferred to have nothing to do with it. To obtain evidence against abortionists, state prosecutors needed physicians to report abortions and collect dying declarations from their patients. Without doctors' cooperation, police and prosecutors could do little to suppress abortion. In illegal abortion cases, doctors found themselves caught in the middle between their responsibilities to their patients and the demands of government officials. The state regulation of doctors in abortion cases coincided with expanding governmental control of medicine through licensing laws and medical practice acts.[4]
In enforcing the criminal abortion laws, prosecutors learned to concentrate on cases where they had a "victim"—a woman who had died at the hands of a criminal abortionist. Popular tolerance of abortion had tempered enforcement of the criminal abortion laws and helped create the focus on fatalities. In 1903, attorney H. H. Hawkins reviewed Colorado's record and concluded, "No one is prosecuted in Colorado for abortion except where death occurs. . .. The law only applies to the man who is so unskilful as to kill his patient."[5] To some extent this emphasis protected women by locking up some of the worst abortionists. Yet the criminalization of abortion contributed to the dangers of abortion because it restricted access to better trained and more careful practitioners. In Illinois, thirty-seven out of forty-three different abortion cases on which the Supreme Court of Illinois ruled between 1870 and 1940 involved a woman's death. Because prosecutors focused on abortionists responsible for abortion-related deaths, they relied upon dying declarations, like those obtained from Petrovitis, and coroner's inquests as sources of evidence. The Illinois Supreme Court commented on dying declarations in almost a third of the cases it heard where a woman died because of an abortion.[6]
Prosecutors won few convictions for abortion, however. But counting convictions for abortion underestimates and obscures the state's serious interest in enforcing the criminal abortion laws. Analysis of the entire investigative process is necessary to bring to light the state's effort to suppress abortion. Police arrests for abortion and inquests into abortion deaths indicate a greater degree of interest in repressing abortion than suggested by the number of convictions. (See figure 1.) Between 1902 and 1934 in Chicago, the state's attorney's office annually prosecuted at most a handful of criminal abortion cases and never won more than one or two convictions a year. In one ten-year period, less than one-quarter of the prosecutions for murder by abortion resulted
Figure 1. Coroner's investigations of abortion-related deaths compared to
arrests and convictions for abortion, Chicago, 1878-1931.
SOURCES: Chicago Department of Police, Report of General Superintendent
of Police of the City of Chicago , 1878-1912, Municipal Reference Collection,
Chicago Public Library, Chicago, Illinois (MRC); Chicago Department of Police,
Annual Report , 1913-1931, MRC; "Chicago Medical Society. Regular Meeting,
Held November 23, 1904, Symposium on Criminal Abortion," JAMA 43
(December 17, 1904): 1890.
in a conviction.[7] In contrast, police made at least ten arrests annually for abortion after 1905, averaged twenty-five or twenty-six annual arrests during the 1910s and 1920s, and made almost forty arrests each year in the early 1930s. Police stepped up their arrests under political pressure. The peak years for arrests for abortion coincided with organized efforts against abortion. For example, a peak in 1905 is probably due to the Chicago Medical Society's renewed efforts to eradicate abortion, and the peak in 1912 matches the coordinated, nationwide raids by the U.S. Post Office on people who used the mail to sell contraceptive or abortion instruments or services.[8]
The coroner conducted even more inquests into abortion deaths every year. Between 1901 and 1919, the years for which figures are available, the Cook County coroner investigated an average of over sixty abortion deaths a year, from a low of eighteen in 1903 to a high of 103 in 1917. Not all of these abortion-related deaths followed criminal abortions; some were "accidental," "self-induced," or "spontaneous" abortions, and others were the result of an "undetermined" cause, but, be-
cause the coroner had to determine the cause of death, these deaths were investigated like criminal cases.[9] Between 1905 and 1919, the coroner sent an average of twelve suspects a year to the grand jury.[10] The level of legal action against abortion steadily increased over time, but the number of convictions did not change at all. Most of the rise over time in abortion inquests and arrests is probably explained by Chicago's growing population, though the rise may also reflect intensified efforts by state officials to control abortion.
Abortion investigations began, as in the Petrovitis case, when physicians or hospitals noticed a "suspicious" case and reported it to the police or Cook County coroner.[11] In the first stage of an investigation, a woman was questioned by her doctor and might be questioned again by police or special investigators sent by the coroner. Each interrogation was an attempt to obtain a legally valid dying declaration, in which the woman admitted her abortion and named her abortionist. A dying declaration not only led police to suspects, but was itself a crucial piece of evidence that could be introduced at criminal trials. As one lawyer observed, it was almost "impossible" to obtain evidence of criminal abortion any other way.[12]
The dying declaration was an unusual legal instrument that allowed the words of the dead to enter the courtroom. Legally, a dying declaration is an exception to the hearsay rule, which excludes the courtroom use of information that has been received second-hand. Common law allowed the admission of dying declarations as evidence in homicide cases, and states permitted this exception in abortion cases as well.[13] Courts treated dying declarations as though given under oath, based on the common-law assumption that a dying person would not lie because she was, as the coroner put it during the inquest on Petrovitis, "about to leave the worlds—to meet her maker." This exception allowed prosecutors to present, in court, the dying declaration as the dead woman's own accusation of who had killed her.[14]
If the woman died, the abortion investigation proceeded to a second stage: an autopsy performed by coroner's physicians and an official coroner's inquest into the woman's death. During the inquest, the coroner or his deputy questioned a series of witnesses and attempted to collect the facts in the case. Police presented for the first time the dying statements they had collected and any other information or individuals uncovered during their investigation. Family members, lovers, friends, midwives, physicians, and hospital staff all testified at these inquests. A coroner's jury then deliberated and decided the cause of death. Al-
though the legal purpose of an inquest was limited to determining the cause of death, the coroner, in fact, wielded significant power. The coroner's inquest was a highly important stage in the legal process since it generally determined whether anyone would be criminally prosecuted. The jury decided the guilt or innocence of various people involved in a case, and, if the jury determined that the woman's death was the result of "murder by abortion,"[15] it ordered the police to hold the suspected abortionist and accomplices. Suspects remained in jail or out on bail until the case was concluded. After the inquest, prosecutors brought the case before the grand jury, which then indicted the suspects. Both prosecutors and the grand jury tended to follow the findings of the coroner's jury; if the coroner's jury failed to accuse anyone of criminal abortion, then prosecutors generally dropped the case. Abortion cases did not come to trial solely after inquests into abortion-related deaths, but most cases in this period followed the death or injury of a woman.[16]
Most of the women subjected to official investigations into their abortions were, like Carolina Petrovitis, working-class women and either foreign-born themselves or daughters of immigrants. The state's focus on working-class women in abortion cases matched the greater policing of working-class people in general.[17] Working-class women's poverty made it more likely that they, rather than middle-class women, would reach official attention for having abortions. All of the forty-four Cook County coroner's inquests available to me were investigations into the abortions and deaths of white, working-class women. Over half were immigrants or daughters of immigrants.[18] Because of their lack of funds, poor women often used inexpensive, and often dangerous, self-induced measures and delayed calling in doctors if they had complications.[19] By the time these women sought medical attention, they were likely to have reached a critical stage and, as a result, come to official attention. Affluent women may have avoided official investigations into their abortions because they had personal relations with private physicians, many of whom never collected or destroyed dying statements or falsified death certificates. Investigations in New York and Philadelphia found 25 to 30 percent of all abortion deaths were falsely attributed to some other cause such as pneumonia or heart failure. If necessary, wealthier families could pressure or pay physicians and officials to keep quiet about a woman's abortion-related death.[20] I found mention of only one case in which the Cook County coroner investigated the abortion-related death of an African American woman dur-
ing this period; unfortunately, no record of the case exists.[21] If black women were questioned by officials after their abortions, they may have found it upsetting to be questioned by white authorities. An African American physician prosecuted for abortion complained of racist remarks by the coroner's office; African American women dying as a result of abortions may have suffered similar treatment.[22]
For doctors, like Dr. Kahn, who had been called in to attend an emergency case, caring for patients who had had abortions was both a medical challenge and a legal peril. The appropriate response was unclear; even specialists disagreed on what a doctor should do. In emergencies, physicians performed curettements, repaired uterine tears and wounds, tried to stop hemorrhaging, and, most difficult in an age without antibiotics, fought infections.[23] Once a woman had a widespread, septic infection (characterized by chills and fever), death was very likely. If a woman died despite a doctor's efforts, the doctor became a logical suspect in the criminal abortion case. According to New York attorney Almuth Vandiver, police arrested physicians "simply because they were the last physician attending the patient and they had not made their report to the coroner."[24]
The state needed medical cooperation to investigate abortion cases, and state officials won that cooperation by threatening physicians with arrests and prosecution. Physicians learned that if they failed to report criminal abortion cases, the investigative process could be turned against them. At a 1900 meeting of the Illinois State Medical Society, Dr. O.B. Will of Peoria, Illinois, warned his associates of the "responsibilities and dangers" associated with abortion by relating his own "very annoying experience" when a patient died as a result of an abortion. He was indicted as an accessory to a murder for "keeping the circumstances quiet, by not securing a dying statement from the patient, and in not informing the coroner." Will declared that he was not required to notify, the coroner and that the woman had refused to make a statement, but his story implied that cooperation with the authorities might help doctors avoid similar notoriety. One doctor told his colleagues horror stories of Boston physicians who had been arrested, tried, and, though acquitted of abortion charges, ousted by the Massachusetts Medical Society. In addition, doctors associated with illegal abortion risked losing their medical licenses. In Illinois, a physician had to be convicted of abortion to lose his or her license, but other states revoked medical licenses without a trial.[25] Physicians learned from tales like these that if they treated women for complications following abortions, they should report the cases to local officials or collect dying de-
clarations themselves in order to avoid being arrested and prosecuted.
Coroner's inquests into abortion deaths, and the negative publicity the coroner could cause, helped enmesh doctors and hospitals within the enforcement system. At inquests into abortion deaths, the coroner regularly reminded attending physicians of "the rule" to call the police or coroner whenever there was evidence that a woman had been "tampered with" and reprimanded those who failed to follow this policy.[26] The fragile reputations of hospitals and physicians could be damaged simply if they were named and associated with an abortion case in the newspapers. At a 1915 inquest into the death of a woman as a result of abortion, the coroner's jury suggested that Rhodes Avenue Hospital, which had cared for the woman, "be severely censured for lax methods in not complying with the rules required in notifying the proper officials . . . and the seeming indifference on the part of physicians and assistants . . . to ascertain who performed said abortion." The hospital protested the censure and the notoriety resulting from newspaper coverage of the case. The superintendent wrote that the hospital had always cooperated with the coroner's office and that "the hospital was not on trial."[27] This publicized reproof warned hospitals and physicians that if they failed to cooperate with state officials, their institutions and careers could be hurt.
By 1917, if not earlier, state authorities had persuaded Chicago's hospitals to pledge their cooperation in the investigation of abortion cases. The city's hospital superintendents reached an agreement with the coroner, chief of police, and state's attorney's office to notify the coroner's office when they saw patients who had had abortions. Furthermore, if it seemed that the woman would die before an official investigator arrived, hospitals agreed to collect the dying declaration themselves. The coroner even provided hospitals with a "blank form" for dying declarations.[28] The official expectation that doctors would report abortion cases to the coroner was not codified, but in the minds of both doctors and state officials, reporting abortions was, as one doctor described it in court, "compulsory."[29]
A few New York physicians voiced the indignation many may have felt towards coroners. They resented the way that police pursued them when they were the last attending physician in an abortion case and then subjected them to "disagreeable inquest[s]." New York physicians felt harassed by the city's coroners, who, the doctors complained, were far too ready to arrest and investigate physicians in criminal abortion cases.[30]
One way to protect themselves from legal trouble and notoriety in
abortion cases, physicians learned, was to secure dying declarations. In 1912, the chairman of the Chicago Medical Society's Criminal Abortion Committee, Dr. Charles H. Parkes, reminded the society that "it is extremely easy for anyone to become criminally involved when connected with these cases, unless properly protected." Parkes presented to the medical society a model dying declaration, drafted by State's Attorney John Wayman, that would "stand the supreme court test." Wayman advised the doctors to ask the dying woman the following questions: "Q: Do you believe that you are about to die? . . . Q: Have you any hope of recovery? . . . Q: Do you understand these questions fully? . . . Q: Are you able to give a clear account of the causes of your illness?[31]
The state's attorney also provided a standardized format for the dying woman's answer. She should answer, "I am Miss———. Believing that I am about to die, and having no hope of recovery, I make the following statement, while of sound mind and in full possession of my faculties." An important part of the statement was establishing that the woman believed she was near death in order for the statement to be considered valid in court. The woman was then expected to name her abortionist, tell when, where, and how the abortion was done, and name the man "responsible" for her pregnant "condition."[32] Although most women who had abortions were married, the state's prosecutors focused on abortions by unwed women, and this formulaic dying declaration assumed that the dying woman would be unmarried.
Physicians advised each other to deny medical care to a woman who had had an abortion until she made a statement. In 1902, the editors of JAMA endorsed this policy of (mis)treating abortion patients. JAMA quoted a physician who counseled his colleagues to "refuse all responsibility for the patient unless a confession exonerating him from any connection with the crime is given." Twenty years later, Dr. Palmer Findley gave the same advice to obstetricians and gynecologists. "It is common experience," he reported, "that the patient will tell all she knows when made to realize her danger and a double purpose is attained—the physician in charge is protected and the guilty party is revealed."[33]
If a woman refused to give information, the smart doctor, according to these advisers, would walk out and refuse to attend her. And some physicians, like Dr. Kahn in the Petrovitis case, threatened to do just that. In 1916, one Chicago man called in Dr. G.P. Miller to attend his wife, who had been sick for three weeks following her abortion. Dr. Miller told her, "If I take this case . . . I want you to tell me the truth
and who did it, who it was. Under the understanding that I was going to leave the house and have nothing to do with it, she told me the whole story."[34] Physicians' refusal to treat abortion cases seems to have reached female consciousness. In 1930, Mathilde Kleinschmidt, ill from her abortion, rejected her boyfriend's plan to call in a second doctor and insisted that he find the doctor who had performed the abortion instead. When he asked why, she explained, "Another doctor won[']t look at me. He won[']t take the case."[35]
Fear of undeserved prosecution encouraged physicians to distrust their female patients. The illegality of abortion compelled doctors to regard all miscarriages as suspect; a woman who claimed to have miscarried might actually have had an illegal abortion in which the attending physician could be implicated. New York attorney Vandiver warned doctors, "Unscrupulous women and their accomplices have it within their power . . . to successfully blackmail the reputable practitioner, who omits the essential precautions for his protection." Dr. Henry Dawson Furniss told a story that encapsulated doctors' worst fears. He had "absolutely refused" to perform an abortion for a woman who later died from one. Under questioning, she used the opportunity to get even with Furniss for spurning her plea for help by blaming him for her abortion.[36]
This case was unusual, however. Few women falsely accused physicians, but many, probably the majority, protected their abortionists by refusing to name them to doctors or police officers. Abortionists, of course, encouraged their patients not to reveal their names.[37] The prosecuting attorney for St. Louis, Ernest F. Oakley, marveled at the loyalty of women who refused to reveal their abortionists' names. Dying declarations, he thought, were obtained in only "four out of ten cases." One New York woman, who was hospitalized following her abortion, told the doctors who pressed her to name her abortionist, "She was the only one who would help me, and I won't tell on her."[38]
As doctors tried to protect themselves from prosecution in abortion cases, women's health care suffered. Because they feared prosecution, many physicians treated their female patients badly—by rudely questioning them in attempts to gain dying declarations or by delaying or refusing to provide needed medical care. For example, during the 1915 "war" on abortion in Chicago, the Tribune discovered that "publicity has changed the attitude of hospital authorities in regard to the handling of abortion victims." One hospital superintendent would neither admit an abortion patient, nor allow an operation "until he had re-
ceived orders from the police." In this case, the hospital allowed police to make medical and legal decisions in an abortion case as a result of a local antiabortion campaign. "It was not until detectives had assured the superintendent that an operation was necessary to save Mrs. Lapinski's life and that there would be no trouble for the hospital," the newspaper reported, "that Dr. G. M. Cushing . . . was permitted to take the sufferer to the operating room." In a less dramatic fashion, doctors regularly avoided caring for abortion patients by sending them to hospitals instead of treating them in their homes. In 1929, when Dr. Julius Auerbach was called in to care for a woman who had had an abortion, he refused to examine her and sent her to the county hospital in order to avoid being "implicated" in the case.[39]
Though some frightened doctors threatened to deny medical care to women who had abortions and insisted they make statements, others refused "to act as a policeman" for the state.[40] Dr. Parkes reported that Chicago officials "believe that the best hospitals now smother these cases and hinder in every way the work of investigation." Dr. William Robinson, a political radical who advocated legalized abortion, scorned physicians who "badger[ed]" sick women to make dying statements. "The business of the doctor is to relieve pain, cure disease and save life," he declared, "not to act as a bloodhound [for] the state."[41]
Other doctors found a middle ground between compliance with and rejection of the state's rules. Dr. Henry Kruse asked Edna Lamb about her abortion, but did not inform her that she was about to die, which a valid dying declaration needed. He explained, "We don't do that to patients because sometimes it is ver[y] discouraging and the result is bad." Other doctors questioned their patients about their abortions, but only reported cases to authorities when women died. When women survived, the doctors destroyed their statements and kept the abortions confidential. In fact, the Cook County coroner accepted this practice as one that protected the interests of women who survived their abortions, shielded physicians from possible prosecution, and provided information to authorities in cases of death.[42]
Making a patient's medical history public undermined the private and personal relationships physicians had with their patients. Some physicians expressed their allegiance to maintaining patient confidentiality, regardless of the wishes of authorities. Dr. Louis Frank of Louisville, Kentucky, commented in 1904, "If I was called in I would not give testimony compromising a young lady, and I would not put it on record, no matter what the facts were, and I would not 'give away' a
girl, but would attempt to protect her." Two Philadelphia doctors believed medical ethics barred them from testifying against an abortionist if it violated a patient's confidentiality.[43]
The names of women who had illegal abortions and the intimate details of their lives periodically hit the newspapers. Press coverage of abortion-related deaths warned all women of the dangers of abortion: death and publicity. Sometimes newspapers covered abortion stories on the front page and included photos; more often, abortion-related deaths and arrests of abortionists appeared in small announcements. The story of an unwed woman's seduction and abortion-related death made exciting copy and could dominate local newspapers for days. Anna Johnson was the center of attention in 1915; a year later Chicago and Denver newspapers published Ruth Merriweather's love letters to a Chicago medical student on trial for his involvement in her abortion-related death. [44] In 1918, the Chicago Examiner ran a series of "tragedies ," excerpted from coroner's inquests, which told the stories of unwed women "who were killed through illegal operations ." The articles in this series warned young women of the dangers of seduction and abortion and also warned rural fathers of the need to protect their daughters from the dangers of city life.[45] The names and addresses of married women who had abortions often appeared in the press, but not as seduction tales.[46] Newspapers sometimes highlighted the fact that police had found thousands of women's names in an abortionist's records.[47] In doing so, they threatened women who had abortions that they too could be named and exposed to the public in the newspaper.
Public exposure of a woman's abortion—through the press or gossip—served to punish women who had abortions, as well as their family members. A Chicago police officer recalled that when he questioned Mary Shelley, she "remark[ed] that she didn't want the statement in the newspapers." A few women whose abortions had been reported in the local press lived to face the shame of public exposure. Doctors observed that even when a woman died after an abortion, families did not want authorities to investigate because they wanted "to shield her reputation."[48] Some families invited state investigation of abortions and pursued prosecution, yet they may have resented publicity about the case. One mother, whose daughter had died because of an illegal abortion, cried at a public hearing that her whole family had "keenly felt the disgrace" of the crime.[49] When Frances Collins died, police visited "all houses on both sides" of her home as well as "some ladies" in her old neighborhood and questioned them in hopes of finding a "woman
confidant." The police failed to locate the friend, but they informed the woman's entire community of her death by abortion and displayed the state's interest in controlling abortion.[50]
For the women whose abortions came to the attention of medical and legal authorities, the demands for dying statements by physicians and police felt punitive. One woman described her hospital experience after an abortion as "very humiliating. The doctors put me through a regular jail examination."[51] In their efforts to obtain dying declarations, police and physicians, usually male, repeatedly questioned women about their private lives, their sexuality, and their abortions; they asked women when they last menstruated, when they went to the abortionist, and what he or she did. Were instruments introduced into "their privates"? If so, what did the instruments look like and how were they used? If the woman was unmarried, she was asked with whom she had been sexually intimate and when, precisely the information that she may have hoped to keep secret by having an abortion. Furthermore, as in the Petrovitis case, it was routine for police to bring the suspected abortionist to the bedside of the dying woman in order for her to identify and accuse her abortionist.[52] Hundreds of women who had abortions may have been questioned annually by physicians, police, or coroner's officers without ever entering official records because they survived their abortions.
To the women, being questioned by police officers about their abortions could seem cruel; to the police officers, the questions, however intrusive, seemed necessary. In the Petrovitis case, Sgt. O'Connor mentioned his own fear of getting in trouble if he failed to question the dying woman. The case was out of his precinct, but he took a statement anyhow, as he testified, "to protect ourselves." He "took no chance" and investigated the case in order "to protect the police department."[53] The sergeant did not explain himself further, but his remarks suggested that in 1916 the police felt under pressure, no doubt from many quarters after the Johnson case the year before, to investigate abortion cases carefully. He did not want to be blamed for ruining the investigation and making prosecution impossible. When presented with an abortion case, this police officer, like the doctor, felt the need for self-protection.
Investigations into a woman's abortion-related death were shameful events for the woman's relatives and friends because state officials required that they speak publicly about sexual matters that they ordinarily kept private and rarely discussed. At the Petrovitis inquest, police officer John A. Gallagher recalled that Petrovitis's sister had translated
his questions, but when he reached the questions "about using instruments on her privates . . . the sister could not interpret anymore, didn't want to."[54] In order to document a pregnancy and abortion, the coroner asked questions about menstruation, sexual histories, and women's bodies. Family and friends often evaded such questions, but the coroner simply repeated his questions until he received an answer. Female witnesses, who may have discussed sexual topics only with other women, sometimes hesitated to speak before male officials, attorneys, and a jury of six men. At a 1917 inquest into an abortion death, the dead woman's sister perjured herself during questioning. At a later trial, she explained, "I knew everything but I could not answer all of them on account of all the men around. . . . Because there was so many men around I hated to talk about my poor sister more than I had to." The question she could not answer was, she explained, "about her body. . . . He asked me if the doctor had used any instrument, and I said no at that time."[55] One immigrant woman commented during questioning by the coroner about her friend's abortion, "I am ashamed to tell." Despite her shame, she was forced to tell and to repeat her testimony at the midwife-abortionist's trial.[56]
The coroner's office understood that female family members often shared intimate knowledge about women's bodies and sexual behavior and tried to crack that female network to obtain information. The questioning of nineteen-year-old Julia McElroy at the 1928 inquest into the death of her sister, Eunice McElroy, is a vivid example of how the coroner's staff expected sisters to have specific information, asked personal, shaming questions, and threatened those they suspected of not cooperating.[57] The deputy coroner questioned Julia intensively about the sisters' dating practices and Eunice's sexual behavior. He began with an offer to proceed in "a private chamber" because his questions might embarrass Julia, but he immediately denied the validity of those feelings in the legal arena. As he explained to Julia, "I may put some questions to you that you may think is embarrassing [sic ], but it is not. I am just merely questioning you because I am an officer of the law, the coroner." Julia denied knowing anything. The coroner established that the sisters shared a bed. "When was the last time your sister had her last menstrual period? You tell the truth," he ordered. Julia told him that her sister had menstruated over three months earlier, and she denied knowing of a pregnancy. "Q: Well, you know they are supposed to come around and flow once a month unless a person is flowing irregularly? . . . You would know when your sister is unwell. She wears a nap-
kin and you probably wear a napkin when you are not well on account of the odor, isn[']t that a fact?" Julia responded only with silence. The coroner continued to press her for information about Eunice's periods and sexual history,. When Julia still maintained her ignorance a few days later, the deputy warned her, "If you don't tell a true story, you are going to get into a jam for a year." On the final day of the inquest, the deputy coroner told Julia that he knew that she had shielded the abortionist. With that, Julia revealed her knowledge and explained that she had been repeating the false story begun by her sister to protect her abortionist. The coroner concluded, "You are lucky you are telling the truth. I would sure send you to jail." The coroner eventually obtained from Julia McElroy evidence helpful for the prosecution of Eunice McElroy's abortionist, but he had put Julia through a grueling experience, asked her graphic, sexual questions, questioned her closely about her sister's and her own dating behavior, and threatened her with jail.
Criminal abortion investigations reveal the importance of marriage—and especially the lack of it—to state officials. When police collected dying statements, they routinely asked about the woman's marital status, and at inquests into the deaths of unmarried women, many of the coroner's questions focused on marital status. The coroner probed to discover whether the man involved had offered marriage. To a man, all claimed to have "promised to marry her." Perhaps men understood that this was the only way they could redeem themselves in the eves of the law and the community. Yet there is evidence of genuine intention to marry. One man had bought a wedding ring. In some cases, the woman wanted to delay marriage; in others, couples found marriage and children financially impossible. As one man testified, "He went to Dr. Rongetti to get rid of the baby because he could not afford it."[58]
Just as dying women endured intrusive questioning about their abortions, their unmarried lovers endured similar interrogations at inquests. For unmarried women and men alike, the official prying into their private sexual lives, and their own mortification, served as a form of punishment for their illicit sexual behavior. The coroner's questions to Marshall Hostetler about his sexual relationship with his sweetheart, Anna Johnson, were not unusual. The coroner asked Hostetler, "When did you become intimate with her? . . . Have any relations with her? . . . When did that occur? . . . Had you been intimate with her before? . . . How many times? . . . Where did that occur?"[59]
Men, too, tried to avoid answering questions related to sex during public investigations into abortion. Charles Morehouse readily an-
swered numerous questions about his girlfriend's abortion, how they borrowed money, and how the family had tried to avoid an investigation. He explained that the doctor had used "a spray." But when the coroner asked "Where?" Morehouse was silent. "A: No response. Q: What portion of the body? A: Well, the privated [sic ] parts."[60]
The "sweetheart of the dead girl" could be punished severely for having transgressed sexual norms.[61] When an unwed woman died because of an abortion, her lover was automatically arrested, jailed, interrogated by the police and coroner, and sometimes prosecuted as an accessory to the crime as well. Bob Berry's experience in 1931 was typical. When Alma Bromps died, police officers arrived at Berry's door and arrested and jailed him. The next morning he identified the body of his girlfriend and was questioned at the inquest into her death. He remained in jail for at least a week and ultimately became a witness for the state against the accused abortionist.[62] Unmarried men involved in abortion deaths often spent at least one night in jail before the inquests and, if they had no money to bail themselves out, might spend several days or weeks depending on the length of the inquest.[63] Some spent months in jail while they waited for their cases to come to trial. In 1917 Charles Morehouse spent four months in jail after the death of his girlfriend. The state prosecuted Patrick O'Connell, a laborer, along with Dr. Adolph Buettner for the abortion that led to Nellie Walsh's death. Although O'Connell was acquitted, it appears that he spent the nine months between Walsh's death and his criminal trial in the Cook County jail. Other men were convicted and sentenced to prison for their part in an abortion.[64]
The actions of state officials toward unmarried men in criminal abortion deaths reveal the state's interest in enforcing marriage in cases where an unwed woman got pregnant. The state punished young men for the moral offense of engaging in premarital intercourse and then failing to fulfill the implicit engagement by marrying the women whom they impregnated. Police routinely arrested and incarcerated unmarried men as accomplices in the crime of abortion, and the state's attorney sometimes prosecuted them. In contrast, husbands, some of whom had been just as involved as unmarried men in obtaining abortions, were not automatically arrested or prosecuted as accomplices when their wives died. It was rare for a husband to be arrested or prosecuted.[65]
Bastardy cases heard in Chicago similarly demonstrate the state's desire to see couples marry when pregnancy occurred. In bastardy cases, the unwed woman brought the father to court to register paternity and
gain minimal financial support for the child. If the couple did not marry., the man could be fined up to $550 or sentenced to six months in jail. Of 163 bastardy cases studied by a Hull-House investigator, a third ended in marriage. Fourteen couples "settled out of court" by marrying, while forty "married in court." Men who reconsidered their situation once in jail could gain their freedom if they decided to marry the woman and legitimate the child.[66]
The official response to unmarried men in abortion cases, as in bastardy cases, served as a warning to other young men of the dangerous consequences of avoiding marriage and children when pregnancy occurred. Newspaper stories of abortion deaths told of the arrest, imprisonment, and interrogation of the "sweetheart of the dead girl," and young men probably traded detailed information about the events that transpired during abortion investigations.[67] Newspaper coverage of abortions warned women that they could die and men that they could be thrown in jail. Some may have concluded that it was better to marry.
Jilted women could exploit the state's readiness to hold unmarried men accountable in illegal abortions as a weapon to strike back at their lovers. These victimized women, as the law regarded them, could consciously use the law to their own advantage. Alice Grimes of southern Illinois actively encouraged official investigation into her abortion for this reason. Prior to her death in 1896, Grimes told her mother that her boyfriend, James Dunn, "ought to suffer some," as she had. When Grimes learned that her uncle had had Dunn arrested, she told her brother she was "glad of it."[68]
The patterns of investigation were so standardized that when a patient died, abortionists alerted family members and explained to them how to suppress evidence and evade the law.[69] With the silence of family members and fake death certificates,[70] abortionists avoided prosecution, women avoided police interrogation, and their relatives avoided the shame of being publicly associated with illegal abortion.
From the late nineteenth century through the 1930s, the state concentrated on collecting dying declarations and prosecuting abortionists when a woman died. The state's control of abortion was by no means entirely successful, but neither was it insignificant. Thousands of women regularly defied the law and had the abortions they needed. When questioned by doctors or police about their abortions, many defied their interrogators and refused to provide the information needed to prosecute abortionists. Yet the state successfully punished women for having abor-
tions, damaged the relationships between women and their doctors, and undermined women's health care. Officials focused on regulating the sexual behavior of working-class women and men, especially the unmarried. Investigations and inquests into abortion forcefully reminded all involved not only of the illegality of abortion, but also of the power of the state to intervene in the private lives of ordinary people in order to prevent and punish violations of sexual codes that demanded marriage and maternity.
Medicine played a complicated role in the enforcement of the criminal abortion laws. Organized medicine acted as part of the state in policing the practice of abortion by women and by physicians. While some physicians actively sought an alliance with the state in enforcing the criminal abortion laws, most physicians who cooperated with the state's investigations did so out of their fear of being arrested as a suspect in an abortion case. By arming themselves with a dying declaration naming someone else as the abortionist, doctors could avoid prosecution and help the state at the same time. The agreement in Chicago to notify the coroner of abortions became a "law" in a sense. Physicians who did not comply with the informal regulations were treated with suspicion by both their colleagues and state officials.[71]
At inquests into abortion deaths, the state reinforced the norms requiting men to marry the women whom they impregnated. Through arrests, incarceration, interrogation, and prosecution, unmarried women's lovers were punished for illegal abortions as well as for their illicit sexual behavior. The treatment of unmarried men in these cases reveals the implicit assumption of state authorities that unwed women who had had abortions had been forced to do so because their "sweethearts" had refused to marry. This underlying assumption ignored the evident agency of many women who sought abortions and delayed marriage. The punishment of unmarried men maintained age-old patriarchal standards.
Analysis of the investigation of abortion in Chicago illuminates the social punishment inherent in the state's routine processes of investigation and the ways in which punishment has been gendered. The state did not prosecute women for having abortions, but it did punish women through persistent questioning by doctors and police and through public exposure of their abortions. The harassment of sick or dying women in the name of criminal investigation continued until the decriminalization of abortion.