Preferred Citation: Reagan, Leslie J. When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973. Berkeley:  University of California Press,  c1997 1997.

Chapter 8 Radicalization of Reform

Professional Reform Measures

Psychiatrists were among the first to question the new structures regulating abortion in the early 1950s. Psychiatrists, the newly liberal and socially activist wing of the medical profession in the postwar period,[1] responded sympathetically to the emotional distress of pregnant women. Their willingness to question the status quo made them early critics of the abortion committee system. Sessions at psychiatry meetings in 1951 and 1952 brought out their frustration. Arthur J. Mandy, a psychiatrist and gynecologist at the Johns Hopkins University, bluntly criticized the therapeutic abortion system as chaotic and discriminatory. Physicians, Mandy declared, found the hospital committee system a "pathetically complicated mess—a hodgepodge of confusion, distortion and duplicity." The lack of clear standards on the indications for therapeutic abortions and the changing policies made the situation "anxiety-provoking" for physicians. The review by hospital committees of honest physicians' recommendations for therapeutic abortion made many of them feel, Mandy reported, like "confirmed criminals."[2]

Hospital restrictions on therapeutic abortion generated resentment among physicians who, as one put it, felt "shackled" by the law. Doctors identified the problem as in the law, not in the structure that had been created by physicians themselves in hospitals under their control.


The monitoring of medical practice delegitimated therapeutic abortion and taught practitioners that they acted on the borderline separating the reputable and the disreputable. Dr. Alan Guttmacher instituted therapeutic abortion committees at two hospitals, yet, he later remarked, those who performed therapeutic abortions had the "haunting feeling that our acts are half-illegal."[3] These doctors soon saw the necessity not of dismantling the hospital committee system, but of changing the law.

Medical and public-health professionals aired the problems of induced abortion in 1955 at a small, unpublicized national conference organized by Planned Parenthood. When Planned Parenthood sponsored this conference on abortion, the organization bravely moved in a new direction. Planned Parenthood, and particularly its medical director, Dr. Mary Steichen Calderone, deserve credit for playing a crucial role in pushing forward a professional movement to reexamine and reform the abortion laws.[4] The organization promised to keep the event quiet.[5] The cloaking of the conference in secrecy is telling: talking about abortion in public scared professionals. The conservatism of the era, both political and sexual, colored the conference. Given that two years earlier one physician had been called to the grand jury as a result of his remarks about abortion at a Planned Parenthood meeting, participants had some reason to worry. Association with abortion could be dangerous. Professionalism did not protect them; instead, it heightened their sense of danger because medical careers depended on good reputations. Conference organizers promised that participants would be quoted only with their permission and could have their "participation deleted" from the published proceedings.[6]

In spite of anxiety about damage to their reputations, the conference participants worked on a joint statement calling for a change in the abortion law, which the majority signed. Professionalism could cut both ways. Professionals worried about protecting their reputations and their social authority, but their status allowed them to speak to controversial matters based on their expertise. "Present laws and mores have not served to control the practice of illegal abortion," their statement began. "To keep on the books, unchallenged, laws that do not receive public sanction and observance," they declared, "is of questionable service to our society." Legal reform was necessary. The participants believed that if current laws were strictly interpreted, most therapeutic abortions would be illegal because they were not induced to "save" a woman's life. The laws should be rewritten to allow doctors


greater legal "latitude" to recommend therapeutic abortions for "psychiatric, humanitarian, and eugenic indications." Liberalizing the abortion laws, the signatories hoped, would expand the practice of legal therapeutic abortion, lessen the inequality among different classes of women in access to legal abortion and birth control, and improve the public health. As a result of the 1955 conference, for the first time in the United States a group of elite physicians and other professionals collectively advocated reform of the criminal abortion laws.[7]

The 1955 abortion conference was a discussion among professionals, and the professionals' view of the world shaped their vision of reform. This is not to say that the efforts initiated by professionals were insignificant, but to point out the boundaries of this conference. Left unspoken at these meetings was the question of whether women could decide for themselves when an abortion was appropriate without having to go through physicians or other intermediaries. The reforms proposed by the group were designed to free physicians from the restraints of laws and committees and to eliminate the sense that providing therapeutic abortions was a shady, disreputable business. Once the indications for therapeutic abortion had been liberalized, sympathetic physicians would be enabled to help more women who needed abortions. Women themselves, however, would still have to obtain medical permission for a legal, therapeutic abortion.

Women's rights were left out of the discussion at the conference and out of the final statement, but it could have been different. The birth control movement had been founded on the principles of female reproductive and sexual freedom, and feminists in England had extended the argument to abortion, but Planned Parenthood now advocated birth control in the name of the family rather than female freedom. Conference participants did not talk about the ALRA in England and its demands for the decriminalization of abortion, though the Bourne case was mentioned and excerpts of the ruling included in an appendix of the published proceedings.[8] This entire group could not have been ignorant of the ALRA perspective, but they did ignore it. Nonprofessional women did not enter the abortion discourse to speak for themselves until later.

The elite of the legal profession heard the complaints of the medical profession and identified with them as professionals unnecessarily hampered by the law. In 1959, the year after the publication of the conference proceedings, the prestigious American Law Institute (ALI), made up of attorneys, judges, and law professors, proposed a model law on


abortion as part of its larger project to standardize American law. As the legal scholar who presented the proposal observed, "The abortion law is out of step with the morals of a substantial, responsible professional group." The ALI's model law clarified the legal exception for therapeutic abortions along the more liberal lines favored by the physicians at the Planned Parenthood conference. It allowed licensed physicians to perform abortions for physical and mental health reasons, fetal defects, or when pregnancy was the result of rape or incest.[9]

The possibility of permitting abortion solely at a woman's request was raised and quickly suppressed. The model law did not allow women and physicians to decide upon abortions without regulation because "it would [not] be sensible to propose a general abortion-at-will statute in this country." Instead, the ALI model law, Leonard Dubin of Philadelphia pointed out, "would go a long way to curing the ill of indefiniteness which has plagued . . . medical practitioners and lawyers trying to advise them." It was hoped that, with the model law, physicians and lawyers would feel less anxiety about therapeutic abortion and, thus, abortions would become more available.[10]

Fearing opposition, the ALI consciously avoided challenging the sexual norms that forbade sex outside of marriage and that treated pregnancy and childbearing as punishment for sexually active unmarried women. The idea of allowing pregnant unmarried women to have abortions provoked a storm. "For us . . . to place the stamp of approval on that," William Marbury explained for the ALI council, "would offend the sensibilities and views of any number of people." This was not about rape, he continued, but about "some girl who goes out and gets herself in trouble and wants to get out of it by an abortion." If the ALI accepted this, it would land in a "great deal of hot water." The speakers expressed little sympathy for the predicament of unmarried women faced with unwanted pregnancies and a great deal of sympathy with a public they assumed to be conservative on the question. The motion to allow abortions in cases of illegitimacy did not receive a second.[11]

The only opposition to the proposed model law on abortion at the 1959 ALI meeting came from a Catholic attorney and a Catholic priest.[12] Like his opponents in the ALI, Illinois attorney Eugene Quay took up abortion as a crucial legal and political question. Quay represented early religious opposition to abortion reform. In 1960 and 1961, he published a lengthy treatise in the Georgetown Law Journal in which he alerted Catholic attorneys to the emerging legal movement to liberalize abortion law and provided arguments to fight the ALI reform. The


Catholic Church had played a key role in opposing the birth control movement and would soon lead the fight against legal abortion.[13]

Over the next decade, legal and medical organizations promoted the ALI model law on abortion in state legislatures as well as in the media. In 1960, the Chicago and Illinois Bar Associations advocated legalization of abortion in cases of rape and incest.[14] By 1967, California, Colorado, and North Carolina had passed the model law. The Illinois legislature voted down reform bills in 1967 and 1968. Twenty-eight other states considered similar legislation, and by 1970, twelve states had passed abortion reform measures based on the ALI model law.[15]

The specter of women dying as a result of illegal abortions propelled activists for legal change. Reformers hoped to protect the lives of more women by granting more therapeutic abortions. Data amassed by New York public-health officers had revealed the growing number of deaths resulting from abortion and shown that most of the women who died were African American or Puerto Rican. Public-health professionals joined the earliest calls for reform growing out of the 1955 Planned Parenthood conference. Dr. Alan Guttmacher, who became the most visible national advocate of reform, explained that his belief in the necessity of legal change was the result of having seen women die because of abortions.[16] The memory and mourning of deaths they could not prevent, but that could have been avoided, caused many doctors and other health-care workers to favor reform. On the popular level as well, awareness of tragic deaths generated support for change. For women, death's shadow always lurked when they sought abortions, and they counted themselves among the lucky if they lived through their abortions. As two early supporters of reform in California, Jerome M. Kummer, a physician at UCLA, and Zad Leavy, an attorney and former prosecutor, vividly observed, "We are confronted with a sea of heartache and confusion and the tragic wastage of more than 5,000 deaths per year. . . . How many women must be sacrificed to needless suffering and death," they asked, before the laws were reformed? If the professions did not take the lead in promoting legal change, an "outraged citizenry," they predicted, soon would.[17]

Chapter 8 Radicalization of Reform

Preferred Citation: Reagan, Leslie J. When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973. Berkeley:  University of California Press,  c1997 1997.