‘Miscarriage’ of Justice

Quickening, the American Medical Association and the Creation of “Abortion”

Tessa Stuart
Department of Rhetoric
University of California, Berkeley, Fall 2009
Introduction

In The History of Sexuality Foucault introduces a hypothesis about our modern

conception of sexuality. We are, he says, to this day dominated by an attitude toward sex

forged in the Victorian era.1 Prior to this period there was, in the western world, a stretch

of history characterized by an open, frank attitude toward the sexual. He writes that

seventeenth century Europe was a time of “direct gestures, shameless discourse, and open

transgressions, when anatomies were shown and intermingled at will, and knowing

children hung about amid the laughter of adults: it was a period when bodies ‘made a

display of themselves.’”2

With the dawn of the nineteenth century came the rise of the Victorian

bourgeoisie and with them a marked shift in the social climate—“On the subject of sex,”

he says, “silence became the rule. The legitimate and procreative couple laid down the

law. The couple imposed itself as a model, enforced the norm, safe guarded the truth, and

reserved the right to speak while retaining the principle of secrecy.”3 The silence he refers

to is the same one that I will—but I will suggest that it existed not only between the

married bourgeois couple and the rest of society, but also between the couple itself, on

the topic of abortion.

Abortion is not a topic that Foucault treats in The History of Sexuality.4 In fact, he

never mentions it all (not even in the final chapter, entitled “Right of Death and Power

over Life”). Its omission is striking, not only considering that the campaign to criminalize

1
Foucault, 3
2
ibid, 3
3
ibid, 3
4
When referring to Foucault’s The History of Sexuality, I will be speaking exclusively of the Introduction,
Volume 1, which is sometimes published with the subtitle “A Will To Knowledge”
abortion was waged throughout the Victorian era, the period of time to which he devotes

the majority of his attention in The History of Sexuality, nor considering that the practice

was decriminalized in the United States in 1970s—the decade in which he wrote The

History of Sexuality and the country in which he spent much of his time doing it. The

omission is most striking rather because of the fact that it is so relevant to the theory he

crafts regarding Victorian sexuality.

While there are a host of analogies that could be made between the theories

Foucault puts forth in The History of Sexuality and the history of abortion in America, I

will direct my efforts only to analyzing in his terms the campaign undertaken by the

physicians of the American Medical Association to eliminate the concept of “quickening”

(the first fetal movements as experienced by that mother) as the moment at which a

pregnancy began. My efforts in the first three chapters will be primarily directed toward

establishing the historical conditions that precipitated the movement to criminalize

abortion in America, then toward analyzing them in terms of Foucault’s theories in the

final chapter.
Chapter One
Reproductive Practices Prior to the Criminalization

A discussion of the criminalization of abortion in America necessarily begins with

a prehistory—a sketch of the characteristics that define the reproductive process and its

attendant practices and philosophies. At the dawn of the nineteenth century, not a single

law existed in the United States regulating abortion at any stage of pregnancy. And while

there was general agreement about the point at which life began, and after which it was

morally reprehensible to induce miscarriage, there was a general indifference in the

public sphere toward the reproductive habits of women. However, a sudden shift took

place in the mid-nineteenth century when the issue of abortion vaulted to the forefront of

the national consciousness, and sparked a debate that persists to this day concerning the

state’s interest in legislating the bodies of its citizens.

In the era preceding the criminalization of abortion, reproduction, including

concerns about pregnancy, birth, and childrearing existed in a sphere that was almost

exclusively occupied by women. This is not to deny men recognition of the necessary

part they played in conception, but to assert they were largely (if not entirely) excused

from any further considerations during the pregnancy, including the choice of whether or

not to terminate it. In his history of the criminalization of abortion in America, James

Mohr cites the experience of a woman named Lizzie Ward to illustrate how abortion

functioned in the lives of Victorian-era women. The account, recorded by Ward’s

husband, pioneering sociologist Lester Frank Ward, states that two years into their

marriage, in early 1864, Lizzie missed three menstruation cycles. “Without consulting her

husband, she obtained an, ‘effective remedy’ from a local woman, which made her very
sick for two days, but helped her terminate her pregnancy.”5

The account of Ward’s experience is useful in illustrating a few of the defining

features of abortion in nineteenth century America. Acting upon the suspicion that she

was pregnant after missing three periods, Ward sought assistance from a local woman,

before even mentioning the hunch to her husband, even though it is apparent in Ward’s

diaries that the couple had discussed family-planning—including a mutually agreed-upon

time frame in which to have children—and experimented with different methods of birth

control.6 Her behavior is indicative of the dynamic that persisted in Victorian-era

marriage (even in the more open and equitable unions like the Ward’s), observers of

which have noted, “husbands frequently became annoyed when their wives indicated that

they might be pregnant and made it clear to their wives that they expected something to

be done about it.”7 Lizzie Ward, guided by the conventional wisdom of the time, did not

feel it was necessary, nor appropriate, to involve her husband in her decision to seek

assistance restoring her ceased menstruation. Mohr reports that for his part, Lester Frank

Ward, informed after the fact, was, according to his diary, “clearly delighted that his wife

was ‘out of danger’ and would not be having a child.”8

Rather than consulting her husband or a physician before taking action, Ward

solicited advice from a local woman. This was a natural decision for a number of reasons,

not the least of which was that most professionally educated and certified physicians did

not specialize in obstetrics and gynecology; indeed, the morality of male physicians’

conducting vaginal exams was a matter of much controversy.9 The country’s first lectures
5
Mohr, 116
6
Ibid, 116
7
Ibid, 114
8
Ibid, 117
9
Gregory and Gregory, as cited by Smith-Rosenberg, 339.
in midwifery, delivered by William Shippen in the 1760s, were addressed to exclusively

female audiences, as was the first American text on midwifery, published in 1807.10

If a woman of the time was concerned that she may have been pregnant, as Ward

was, she was much more likely to approach a female family-member, acquaintance or

neighbor known to have experience and first-hand knowledge of herbs, procedures or

alternative methods that could effectively return a woman’s body to its natural state (as it

was regarded). Mothers, grandmothers, sisters and friends shared knowledge acquired

through first-hand experience of how to limit or promote fertility. “Women as midwives

and as family nurses, women wise in the ancient pharmacopoeia,” Carroll Smith-

Rosenberg writes, “had always cared for their own and neighboring families. A survey of

cook books and women’s diaries for the eighteenth and early nineteenth centuries show

that women collected and exchanged recipes for medicines as routinely as they did for

pies and cookies.”11

If a she was not in contact with other women whom she could ask for help, there

existed a wealth of books widely available and addressed to the married woman with

explicit instruction on how to cure a case of Amenorrhea (unusual absence of

menstruation). Mohr cites William Buchan’s Domestic Medicine (1772) as the text that

most Americans would have referenced. In it the author lists a number of treatments to

‘restore menstrual flow,’ including, “bloodletting, bathing, iron and quinine concoctions,

and if those failed ‘a tea-spoonful of the tincture of black hellebore [a violent purgative]

…twice a day in a cup of warm water.’”12 Samuel K. Jenning’s “The Married Woman’s

companion: A Poor Man’s Friend” (second printing 1808), was a similarly written
10
Smith-Rosenberg, 231
11
ibid, 228
12
Mohr, 6
specifically for women in rural areas who could did not have access to doctors because of

money or distance.13 Other texts that were made available for the same purpose included:

Advice to Mothers (1809), also by Buchan; The Maternal Physician: A Treatise on the

Nature and Management of Infants...by an American Matron (1811); Female Medical

Repository by Joseph Brevitt (1810), Letter to Ladies by Thomas Ewell (1817).14

Each of these books detailed a number of methods by which women would be

able to provoke menstruation. In The Married Lady’s Companion, Jennings describes a

remedy for women who suffered from “what you call the common cold” referring to the

expression for skipping a menstrual cycle. In Domestic Medicine, Buchan lists as a

common cause of abortion “great evacuations and vomiting,” only four pages after a

recipe to induce menstruation by employing a violent purgative.15 Buchan also includes a

cautionary list of activities that could cause a miscarriage including “violent exercise;

raising great weights; reaching too high; jumping, or stepping from an eminence; strokes

on the belly; falls.”16 In The Female Medical Repository Brevitt also takes stock of a

variety of external causes of abortion, but qualifies the list with a footnote that states:

“I feel constrained to note here, the horrid depravity of human weakness, in wretches lost
to every sense of religion, morality, and that natural attachment from a mother to her
offspring, and every tie in nature, seek the other means to procure abortion: nor are there
wanted, in other sex, infernals wicked enough to aid their endeavors.”17

There is obviously some contradiction in including such a note alongside detailed

instructions to induce abortion, but when surveying the available literature, it is difficult

to ignore the refusal to speak plainly about abortion.

13
ibid, 7
14
Smith-Rosenberg, 338.
15
Mohr, 6
16
ibid, 7
17
ibid, 7
 In Reproductive Rituals, McLaren makes a point of emphasizing the variety of

euphemisms employed in women’s recipe books in the seventeenth and eighteenth

century abortifacients:

In seventeenth- and eighteenth-century women’s receipts books a similar reluctance to

discuss abortion per se is found. Instead one finds extensive suggestions on how to
‘provoke the terms’, ‘purge the courses’, ‘bring down the flowers’ and deal with ‘menses
obstructed’. In the early 1600s Ann Brumwich recommended ale and horehound ‘to bring
them [the menses] down when the stope in young maides’…Abigail Smith in 1725
prescribed ‘for to procure the monthly terms of a woman’ orange in white wine and Mrs.
Finger boasted of her own recipe that ‘it hardly ever fails but has brought the same person
about two or three times’. 18

McLaren goes on to list no less than twelve additional medical-herbal reference books of

the time that also listed herbs thought to have the power, in their words, “to provoke”, “to

procure”, or “to restore menstruation”; “to bring down the flowers”, “to bring down a

Woman’s Course”, “to treat menses obstructed”, as well as entries listed as “provokers of

the catamenia” and one recipe called “An Opening Drink." 19

The myriad euphemisms employed in this discourse—I hesitate to say “on

abortion” because Victorian-era Americans did not call it that (The word abortion itself

was synonymous with our usage of miscarriage. The transformation of the word’s

significance is a testament to the efficiency of the campaign that sought to criminalize

abortion, and a subject I will return to later),20 and because an action to ‘restore

menstruation’ did not constitute an abortive attempt (as a pregnancy did not exist until a

woman felt the fetus moving inside her)—functioned in two ways. First, they served to

separate an action that essentially terminated a pregnancy from any questions of life or

the potentiality thereof. Second, they preserved an air of inscrutability for women around

18
McLaren, 102
19
McLaren, 102
20
Smith-Rosenberg, 219
reproductive practices, effectively excluding men from the discourse.

These two functions were related—to understand why, look back at the note

Brevitt included in The Female Medical Repository, breathtaking in its contradiction. In

it, he condemns both women who would seek to abort a pregnancy and any men who

would assist them, a group among which he should rightfully be considered. The note is

indicative of an expansive gulf that existed in the dialogue on reproduction between men

and women, but also between concepts of morality and practicality. There was, on one

hand, a tacit acknowledgement that women needed recourse when an unwanted

pregnancy occurred (for the million reasons that they continue to occur today, and

additionally because contraceptives of the time were more experimental than reliable,21

and because unequal gender roles meant that many women were compelled to participate

in sex with their husbands even when they were unwilling or unprepared to carry a

resulting pregnancy to term22); and on the other, an interest in projecting an image of

unimpeachable moral uprightness.

Encoding their language in euphemism served the same function as appealing for

advice from female friends and midwives rather than male physicians—it allowed

women to keep their reproductive practices private from men, and afforded them power

and privilege in a time when, in every other realm, they were denied it. However, keeping

men at such a distance ultimately had a negative effect. Without proximity to the

reproductive sphere—without understanding the wrenching emotional landscape

21
After Lizzie’s abortion, Lester Frank Ward notes in his journal that he and his wife experimented with a
number of different “pills” and “instruments” to avoid conceiving again. AA, 117
22
A doctor corresponding with H.R. Storer, the spearhead of the American Medical Association’s anti-
abortion campaign, said in a letter that his female patients had no shame aborting because they felt if they
“must submit to sexual intercourse, they are justifiable before God and good men to prevent conception.”
Simon M. Landis, A Stricktly Private Book…on the Secrets of Generation, 20th Ed (Philadelphia: Landis
Publishing Society, 1872) CD, 220
presented by an unwanted pregnancy—men only understood an issue like abortion as an

impassive, clear-cut question of right and wrong, devoid of human affects and the

entanglements that many women of the time knew it to have.

Chapter 2
Quickening

To understand why Brevitt felt confident enough to footnote his manual on

abortive method and technique with a moralistic condemnation of the practice without a

hint of irony, it helps to consider the cultural context—specifically, the way that the

reproductive cycle was understood at the time. It is important to recognize that at the

time, the technology to determine with any degree of certainty whether or not a woman

was pregnant during what we now term the first trimester simply didn’t exist. At Harvard

Medical School in the 1820’s, Walter Channing, a lecturer on midwifery and the diseases

of women and children, taught his students that pregnancy was “impossible to diagnose

during the early months of gestation.”23 Contrary to our modern associations, the absence

of menstruation was not considered a conclusive, or even a likely, indicator of pregnancy.

If a woman had missed a number of periods her body was considered to have fallen into

an imbalance, and in this case an intervention would be required, one that could return

the body to its natural state. In When Abortion Was A Crime, Leslie Regan writes, “A

disruption in the healthy body, in the worldview of patients and physicians, required a

visible, often violent, physical response to treatment in order to restore equilibrium.”24 An

action that effectively terminated a pregnancy was spoken of in terms of “restoration” to

the body’s natural state. By framing it as a function of the body as private and banal as a

constipation of the bowels, women in England and the United States effectively

preserved their recourse to elective abortion for centuries.

In the absence of reliable means to conclusively confirm that a pregnancy was in

progress, “quickening”—the moment in which the first fetal movements were felt by the

woman—constituted the beginning of life and the start of a pregnancy. Quickening,

which usually occurs around the fourth month after conception, is an idea with a

23
Mohr,14
24
Reagan, 9
foundation in philosophical and religious thought. In the fourth century BCE, Aristotle

called the phenomenon, which he counted as the instance in which the soul came into

being, the moment of “animation.”25 Nearly 1,700 years later, Thomas Aquinas, whose

works were immensely influential in medieval, and later Catholic, Christianity, wrote that

the fetus’ first stirring marked the moment of “ensoulment.” 26 Both men used it as a point

of distinction between life and a somehow lesser state.27 When the word ‘quicken’

entered the English language in the fourteenth century it meant literally ‘to come to life’

but the primary definition provided by the OED relates specifically to spiritual life: “To

give or restore spiritual life to; to revive spiritually; to animate (the soul, etc.).” 28 This is

sense is used in early Anglo-Saxon medical texts describing fetal development. The

author of Leechdoms, Wortcunning and Starcraft of Early England (1865) explains, “In

the third month he is a man without a soul. In the fourth month he is firm in his limbs, in

the fifth month he is quick and waxeth.”29

It was by way of “the tangled disputes of medieval theologians over whether or

not an impregnated ovum possessed a soul”30 that the quickening doctrine entered the

British common law tradition, which would later govern the practice of abortion in the

United States. Commentaries on the Laws of England, published in 1765, offers an

account of the court’s perspective:

“Life…begins in the contemplation of the law as soon as an infant is able to stir in its
mother’s womb. For if a woman is quick with child, and by a potion or otherwise,
killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and
she is delivered of a dead child; this though not murder, was by the ancient law
25
McLaren, 108
26
ibid, 108
27
ibid, 108
28
Oxford English Dictionary: quicken v.1, I. a. 1.
29
McLaren, 108
30
Mohr, 4
 homicide or manslaughter (Bracton). But Sir Edward Coke doth not look upon this
offence in quite so atrocious a light, but merely as a heinous misdemenor.”31

This articulation of the court’s position, distilled from a history of decisions with regard

to abortion, is reflective of a public consensus that quickening constituted the start of a

pregnancy. In the absence of any legislation whatsoever on the subject, the practice of

regulating reproduction after conception in America, remained, through the middle of the

nineteenth century, governed by British common law and quickening was held that as the

moment at which a pregnancy began.

As a legal distinction, quickening presents a number of problems. It is completely

subjective, the point at which it occurs can vary dramatically from woman to woman and

some women never experience it at all. It is also entirely impossible to corroborate in any

way. The case Commonwealth v. Bangs, decided by the Massachusetts Supreme Court in

1812, set the precedent for abortion cases in America for the next forty years. The case

shows the difficulty of requiring proof of quickening to find a person guilty of the crime,

as articulated by British common law. Isaiah Bangs was charged with preparing and

administering an abortifacient—acts the court found he did commit. Despite proof of his

actions, Bangs was ultimately acquitted for the crime because the prosecution did not

explicitly aver “that the woman was quick with child at the time.”32 The precedent set by

this case became so established in the American legal system that “indictments for

abortion prior to quickening were virtually never brought to American courts. Every time

the issue arose, prior to 1850, the same conclusion was sustained: the interruption of a

suspected pregnancy prior to quickening was not a crime itself.”33

31
McLaren, 122
32
Mohr, 5
33
ibid, 6
 The employment of quickening in the contemporary legal discourse represents the

height of the privilege and the broad extent of the privacy women enjoyed with respect to

the reproductive process in early nineteenth century America. Both elements are visible

in the court’s historical attitude towards abortion—first, common law forcefully validates

the woman’s role as mother, and recognizes her capacity for reproduction as a function

vital to society, by stating society’s interest in protecting the reproductive process.

Second, through its preservation of the quickening doctrine as the legal test for

conviction, the law privileges the woman’s private and subjective experience of her body

in the public discourse. Through this articulation, the law effectively amounts not to law

at all. Instead, constitutes to a good-faith agreement with women, setting out a mutually

agreed-upon point as the start of pregnancy, and requesting that after that point they

refrain from interrupting the reproductive process, for the good of society.

The fact that the law explicitly stated that any conviction would hinge on the

defendant willingly producing the singularly decisive piece of incriminating evidence is a

testament to the liberal view with which the court considered cases involving women’s

reproductive habits. Furthermore, in the event that there was both an acknowledgement of

quickening, and an acknowledgment of an effort to terminate a pregnancy after it, the act

was not considered “homicide or manslaughter…but merely as a heinous misdemeanor.”

Though it was rarely enforced, if the ineffectual law somehow yielded a conviction, as a

misdemeanor, only a relatively lenient penalty could be applied, lending credence to the

idea that, at the time, both the court and the general public had little real interest in

imposing restrictions on a woman’s recourse to regulate reproduction.

While the employment of the quickening doctrine made the law extremely
ineffective at producing convictions for abortion, its use still had important

consequences. Since quickening was mobilized as point of distinction after which it was

a crime to induce a miscarriage, the law tacitly sanctioned a woman’s prerogative to take

measures to either restore menstruation or induce miscarriage prior to that moment. “The

upshot,” Mohr writes of the quickening doctrine’s acceptance in common law, “was that

American women in 1800 were legally free to attempt to terminate a condition that might

turn out to have been a pregnancy until the existence of that pregnancy was

incontrovertibly confirmed by the perception of fetal movement.”34 By delineating a line

after which it was morally reprehensible to abort, the common law etched out a time

frame in which women were permitted to terminate a pregnancy—early in gestation, for a

period of time that was roughly equivalent to the duration of what we call the first

trimester. The wide acceptance of the quickening doctrine by the public, and its

subsequent enshrinement in the legal discourse, serves as the frame on which our modern

conception of what constitutes an acceptable abortion is draped.

It was by virtue of its inscrutability that quickening, even when it was employed

in a law that ostensibly sought to restrict the occurrence of abortion, nonetheless

preserved it. However, it was also the impenetrability of the quickening doctrine as a

moral and legal distinction that made many men suspicious of it. The work of

Cangiamila, an eighteenth-century doctor of theology, is particularly illustrative of this

point. Cangiamila recognized that historically, excommunication from the Catholic

Church was reserved only for women who aborted after quickening.35 Nonetheless, he

was unnerved by his perception that women “clung to the notion of a lack of vitality

34
Mohr, 4
35
McLaren, 110
before quickening because it allowed them to proceed with the abortion free of

remorse.”36 He cautioned, “Nothing is more unreal than the false and dangerous subtlety

that distinguishes the animated foetus from the one who has not received life”37 This

sentiment, that the quickening doctrine allowed women a dangerous amount of agency

with respect to matters of life, mobilized enough fear in men that it would later become

the centerpiece of the American Medical Association’s campaign to criminalize abortion.

Chapter 3
Abortion Practice Enters the Public Consciousness

36
ibid, 110.
37
Cangiamila, as cited by McLaren, 110.
 Quickening was anomaly in the public discourse: a subject on which men deferred

to women’s judgment, an institution that placed a value on a woman’s experience of her

body—so much that it staked law upon it. The respect with which society regarded the

distinction was reiterated as America transitioned from using British common law to

written legislation. The first piece of legislation to explicitly treat abortion was in a

“Crimes and Punishments” omnibus act, passed by the general assembly of the state of

Connecticut in 1821. Sandwiched between articles that made “intent to kill or mob” and

“secret delivery of a bastard child” crimes, appeared Article 14, which read:

“Every person who shall, willfully and maliciously, administer to or cause to be

administered to, or taken by, any person or persons, any deadly poison, or other noxious
and destructive substance with the intention him, her, or them, thereby to murder, or
thereby to cause of procure the miscarriage of any woman, then being quick with child,
and shall be thereof duly convicted, shall suffer imprisonment…during his natural life, or
for such other term as the court having cognizance of the offence shall determine.”38

It is important to recognize first, that the quickening doctrine as set forth in the common

law remained intact. Additionally, this legislation did not qualify the action of

terminating a pregnancy as illegal—nor did it seek to criminalize the woman herself. In

fact, it appears solely intended as a poison control measure. Ingesting a toxic substance to

induce miscarriage was such common practice between the seventeenth and nineteenth

centuries that “poisoned” was the slang term for pregnant.39 The authors of the law added

the miscarriage clause on the advice of John Burns, the leading authority on subject, who

wrote: “It cannot be too generally known that when these medicines do produce abortion,

the mother can seldom survive their effects.”40 In effect, this first legislative reference to

abortion in America was designed specifically to protect the mother, rather than to restrict

38
Mohr, 21
39
Lengum, 423
40
Mohr, 21
her recourse to safely terminate a pregnancy.

The fact that America’s first abortion law, ironically, as Mohr puts it, “does not

appear to have been greatly opposed to abortion itself”41 is significant. It served to

confirm a fact that the on-going acceptance of the common law suggested—that in

America, throughout the early nineteenth century, the general public respected a

woman’s prerogative to terminate a pregnancy, prior to quickening, without interference

by the law. In the twenty years following the passage of Connecticut’s law in 1821, a

number of states passed legislation that, in effect, explicitly preserved the view toward

induced miscarriage established by the common law42—meaning, none openly challenged

a woman’s recourse to regulate fertility generally, and most appeared to specifically

target the men who sought to invade the sacrosanct, traditionally female sphere,

effectively preserving the privacy of a woman’s decision to terminate a pregnancy at her

own discretion.

These laws, up until 1841, were also always included in omnibus, “catch-all”

crime bills, a fact that suggests there was not an overwhelming public demand to deviate

from the tradition inaugurated by the common law. A second example is found in the

1828 revision of the New York state criminal code, which, similarly to the earlier

Connecticut law, targeted not the women who sought abortions themselves, but men who

might seek to benefit in some way from a woman’s vulnerability in the moment. Section

21 of the code made guilty:

“Every person who shall willfully administer to any pregnant woman, any medicine,
drug, substance, or thing whatever, or shall use or employ any instrument or other means
whatever, with intent to thereby procure the miscarriage of any such woman, unless the
same shall have been necessary to preserve the life of such woman, or shall have been
41
ibid, 24
42
ibid, 27
 advised by two physicians to be necessary for that purpose”43

While the legislation itself does not explicitly single men out, a note appended to the

legislation decried the “rashness of young” male physicians who would endanger

women’s lives for “the mere purpose of distinguishing themselves.” 44 Like the

Connecticut law, the New York code appears designed to protect women from men who

would attempt to gain entry to the reproductive sphere with without proper cause.

The New York criminal code and the appended note provide some insight into

another emerging phenomenon—a keen, demonstrated interest on the part of young

medical professionals in the fields of obstetrics and gynecology. Prior to this time, the

medical establishment had shown little interest in the reproductive disciplines: although

the University of Pennsylvania medical school established a chair of midwifery in 1807,

it was the only class that that was not required in order to graduate.45 Furthermore, there

was some suspicion from the general public of men’s interest in these fields—in the

1840s, as physicians began in earnest their effort to stake a claim to this traditionally-

female domain, the morality of male physicians performing vaginal examinations was the

subject of heated public debate.46

The physicians’ push to enter the fields of obstetrics and gynecology in the 1840s

coincided with a public consciousness of three other factors, the combination of which

created a climate in which the dramatic restructuring of the established legislation

concerning abortion took place. First, the domestic birthrate plunged. Second, abortion,

long practiced in private, came to the forefront of the national consciousness, and with it

43
Mohr, 28
44
ibid, 29
45
Smith-Rosenberg, 231
46
ibid, 231
came a new understanding of the demographics of the women electing to terminate their

pregnancies. Third, and most importantly, in 1847, the American Medical Association

was founded.

There is little debate concerning the impact that lobbying efforts of the American

Medical Association had in the criminalization of abortion.47 The organization was

founded in the hope of improving the professional credibility of the regular physicians

who had invested copious amounts of time and money in order to earn a medical degree,

pass an accreditation process, and gain a license to practice—all processes which

irregular practitioners, their competition, did not undertake. The feeling that they were

not reaping the appropriate dividends for their additional education compelled regular

physicians to seek a new way to distinguish themselves in their field. The formation of

the AMA was crucially important in the service of this effort: it established a network of

doctors who were similarly educated, similarly interested in upgrading the standards of

their profession, and of a similar mind on a number of issues—including their opinion on

the issue of abortion.

Regulars opposed abortion for a number of reasons, but probably most prominent

among them was that abortion, like assisted suicide, was explicitly forbidden by the

Hippocratic Oath. A strict adherence to the Oath was the centerpiece of their professional

identity—one of the key features that set them apart from midwives, apothecaries and

other homeopathic practitioners lumped together and roundly labeled “quacks.” Their

moral opposition to abortion, which stood in stark contrast to the attitude of the majority

of the irregular practitioners, put regular physicians at a significant disadvantage in terms

of competition for patients. They worried that if they refused to provide the service to a
47
Mohr, Chapter 6; Reagan, 4; Smith-Rosenberg, 217-244
woman they would lose business, however, “it was not so much the short-term loss of a

fee for the abortion that upset them,” Mohr writes, “but the prospects of long-term loss of

patients.”48 The occasion to provide abortion was, at the time, viewed as an opportunity to

gain life-long patients, as it was common practice for a woman to keep her abortionist as

her family doctor.49

Around the same time that the American Medical Association was formed, the

incidence of abortion in America was rising dramatically. Reports conflict, and there is

no infallibly reliable statistics available about the rate of abortion prior to 1830, but Mohr

estimates that after 1840 abortion rates rose from a 1 abortion for every 25-30 live births,

to 1 in 5 in the 1850s. He cites as evidence for the dramatic rise a host of factors:

increased visibility of abortion in popular newspapers (in both stories and

advertisements);50 the flourishing trade in abortifacients;51 “the accelerated proliferation

of materials that allowed American women an ever widening access to possible methods

of aborting themselves;”52 increased education of women about their bodies (through

traveling lectures of sexual physiology that became popular during the time, so much so

that in 1849 the presentations “were the primary topics of conversation in New York, and

also in Boston and Philadelphia”);53 the emergence of private female clinics in locations

around the country;54 a glut of medical jurisprudence writing on the subject;55 and finally,

the writing of American physicians on the issue.56

48
Mohr, 37
49
Smith-Rosenberg, 232; Mohr, Ch. 3 and 4.
50
Mohr, 50
51
ibid, 53
52
ibid, 61
53
ibid, 69
54
ibid, 70
55
ibid, 72
56
ibid, 74
 Ten years after the establishment of the AMA, in 1857, Horatio Robinson Storer,

a young physician and the son of a well-know professor of obstetrics and medical

jurisprudence at Harvard, capitalized on the increasing public awareness—and wariness

—of abortion. Employing the AMA’s network, he began writing letters to doctors

around the country inquiring about the abortion laws in their respective states. Storer is

credited as the figure that successfully galvanized the rest of his profession to publicly

advocate their previously privately held views.57 To single Storer out, though, would be

to ignore the fact that he summoned a sentiment that may have been latent, but was very

present in the minds of many of his contemporaries. While the increasing demand from

the public for abortion services and the ethical conflict that regular doctors in the

nineteenth century felt over providing them are frequently cited as reasons for the AMA’s

campaign against abortion, it is evident in letters exchanged between Storer and

physicians around the country that another large motivating factor arose from the

perception of who the women soliciting abortions were.

While there had been, up until the 1830s, a dominant impression (in large part

because of men’s distance from reproductive decisions) that most abortions were

solicited by young, unwed girls who had gotten in to “trouble.”58 In the 1840s, with the

new public interest in abortion there was shift in consciousness of who was getting

abortions, namely: white, Protestant, married women.59 In H.R. Storer’s infamous

treatise, Why Not? A Book For Every Woman (winner of the American Medical

Association’s prize for best essay on the subject of abortion) he asserted that abortion was

57
Mohr, 148; Reagan 11; Smith-Rosenberg 221
58
McLaren, 91; Mohr, 46
59
Mohr, 46
“infinitely more frequent among Protestant women than among Catholic.”60 An assertion

that, no doubt, was extremely unsettling to regular physicians, the vast majority of which

were white, native-born, protestants “of British and North European stock.”61

Chapter 4
The Physicians Campaign for Criminalization

Within our own memory the time was when foeticide or criminal abortion was little
known and seldom heard of in this country, and to the latter part of the nineteenth
century is due the establishment and spread of this—the greatest curse which could
befall the human family; and it matters not in what way we turn our attention or in what
60
Storer, HR, 64
61
Mohr, 166
way we direct our footsteps, whether in towns or cities, the same extensive, wide-spread
evil is everywhere to be found, decimating the human family.

–Statement by the American Medical Association, 1871

In Volume I of The History of Sexuality, Foucault asks, “All this garrulous

attention which has us in a stew over sexuality, is it not motivated by one basic concern:

to ensure population, to reproduce labor capacity, to perpetuate the form of social

relations: in short, to constitute a sexuality that is economically useful and politically

conservative?”62 Whether or not, he maintains that the result of this attention has been the

multiplication of categorical distinctions made among the sexual—separating out those

sexualities termed “unproductive.” His list of sexual distinctions that arose in the

nineteenth century includes homosexuals, pedophiles, and zoophiles; and to it I would

add women who sought abortions.

Foucault writes that at the dawn of the Victorian era with the rise of the

bourgeoisie there was a shift in the discourse on sexuality. While earlier, in the

seventeenth and eighteenth centuries, sexuality had been an unembarrassed thing spoken

of openly, by the nineteenth century the bourgeois couple had seized control the

discourse of sex and sought to exclude any sexuality that existed beyond the heterosexual

marriage. “On the subject of sex,” Foucault says, “silence became the rule. The

legitimate and procreative couple laid down the law. The couple imposed itself as model,

enforced the norm, safeguarded the truth, and reserved the right to speak while retaining

the principle of secrecy.”63

White, married, Protestant women who exercised control over their fertility
62
Foucault, 37
63
Foucault, 3
through the use of abortion certainly retained the principle of secrecy on the topic (toward

their husbands, if not their peers). By fiercely guarding the privacy of their reproductive

practices, however, they undermined their position as one-half of the unimpeachable

model of Victorian sexuality, and became the object of male physicians’ (often their own

husbands) efforts to control their sexuality by imposing silence on them—as executed

through their efforts to discredit the quickening doctrine.

Reports of the increase in abortion rates among American women, particularly

among white, Protestant married women, was the impetus of the physicians’ crusade to

criminalize abortion. When abortion appeared in the public consciousness in the 1840s,

and with it, estimates of the rate at which it was practiced without their knowledge,

medical professionals were struck dumb. Mohr reports that medical articles began to

appear on the subject of abortion, peppered with descriptors like “common,” “enormous,”

“shocking,” “rapidly increasing,” and “national crime.”64 One physician corresponding

with Storer reported, “hardly a week passes but I am made cognizant of facts which prove

the prevalence of the crime, not only, but the calmness, I had almost said, the approbation

in which the public seem to look upon it.”65 Edwin M. Hale, the leading spokesman for

homeopathic medicine similarly reported in an article in the American Journal of

Homeopathy, “there is not one married female in ten who has not had an abortion, or at

least attempted one! ...I have met with women who have had respectively eight, ten and

thirteen children, and as many abortions!”66 To these men, it was not simply a matter of

morality of abortion, per se. With the rates at which women were electing to abort, it

became an issue of public interest.

64
Mohr, 76
65
Smith-Rosenberg, 220
66
Mohr, 76
 Beginning in the 18th century there was, according to Foucault, an incitement to

talk about sex in the form of “analysis, stock-taking, classification, and specification, of

quantitative or causal studies.”67 This particular incitement to discourse was, he says, in

large part due to the emergence of the concept of population. Population “as wealth,

population as manpower or labor capacity, population balanced between its own growth

and the resources it commanded…”68 With the concept of population emerged an

apparatus called “the public interest,” which Foucault defines as: “not a collective

curiosity or sensibility; not a new mentality; but power mechanisms that functioned in

such a way that discourse on sex…became essential.” 69 Over the course of the nineteenth

century, birthrates plummeted from an unprecedented high in 1810 that far exceeded the

birthrates of every European country (1358 children under the age of 5 for every 1000

white women of childbearing age), to less than half that number by the end of the

century.70 In other words, over the course of the century, the average number of children

a woman would have plummeted from 7.04 at the beginning, to 3.56 by the end.71 The

steepest decline occurred in the 1840s, concurrent with the marked increase in the rates of

abortion. It was with respect to these measurements, which constituted both the wealth

and power of a society, that the AMA campaign became concerned with the problem of

abortion in America.

It was, in particular, when concerns related to issues of population became

personally compelling that physicians began in earnest a campaign to criminalize

abortion. White Protestants were, quite explicitly, anxious about maintaining their
67
Foucault, 24
68
ibid, 25
69
ibid, 23
70
Mohr, 82
71
ibid, 82
dominant position in American society. According to Reagan, “Birth rates among the

Yankee classes had declined by mid-century while immigrants poured into the country.

Antiabortion activists pointed out that immigrant families, many of them Catholic, were

larger and would soon out populate native-born white Yankees and threaten political

power.”72 With new information composing a very different image of the aborting

woman, discussions concerning abortion transformed from a matter of abstract

philosophy into urgent matter of the continued existence of white Protestant America. In

Why Not? A Book For Every Woman, Storer asks of the American West, “Shall [these

regions] be filled by our own children or by those of aliens? This is a question our

women must answer; upon their loins depends the future destiny of the nation.” Storer is

saying, in effect, that women have a responsibility to produce, to participate in a sex to

meet economic and social ends.

Like the west, a woman’s body had its own manifest destiny according to Storer,

who wrote, “Were woman intended as a mere plaything, or for the gratification of her

own or her husband’s desires, she would have no use for neither uterus nor ovaries...”73

The argument that women who sought to limit their fertility were acting contrary to

nature was pervasive in the physician’s rhetoric regarding abortion. Discussing abortion

in his introductory lecture to a class of obstetrics and gynecology students at the

University of Pennsylvania, Hugh L. Hodge said, “mothers, in many instances, shrink not

from the commission of this crime, but will voluntarily destroy their own progeny, in

violation of every natural sentiment, and in opposition to the laws of God and man.”74

Similarly, in a lecture that precipitated the AMA campaign, David Humphreys Storer told
72
Reagan, 11
73
HR Storer, 32
74
Hodge, 22
his medical students that women “should be made to comprehend that their well-being

depends upon a proper observance of certain natural laws, which are readily understood,

and which are as exacting as they are intelligible.”75

Foucault discusses this nineteenth century fixation with the unnatural, saying that

it was responsible, in large part for the proliferation of discourses that arose at the time:

“Doubtless acts ‘contrary to nature’ were stamped as especially abominable…” The

unnatural was a specific dimension in the field of sexuality, which, he says, “assumed an

autonomy with regard to the other condemned forms such as adultery or rape…: to marry

a close relative or practice sodomy, to seduce a nun or engage in sadism, to deceive one’s

wife or violate cadavers… ”76 It is in this category, reserved for those on the fringes of

society, that the physicians of the American Medical Association filed women with the

“unnatural” impulse to terminate a pregnancy. By placing women in this category the

physicians deemed them radicals in diametric opposition with the “socially conservative”

sexuality they were supposed to possess.

Nineteenth century American women who aborted subverted their role in the

economically productive and socially conservative bourgeois model of sexuality. They

sought to limit their fertility, rather than expand it, to the chagrin of white, Protestant

physicians. In doing so, they proved themselves first, sexually “unproductive,” and

second, “unnatural” because they lacked, in the absolutist eyes of regular physicians, any

remorse for killing their children. Once it was established that these women were

unproductive sexual oddities, they needed to be silenced in the same way those “other

Victorians”77 had been.

75
DH Storer, 13
76
Foucault, 38-39
77
Foucault, 4
 In order to silence these women it would be necessary to strip them of the right to

speak in the single public space they retained it—it would be necessary to eliminate the

quickening doctrine from the legal discourse and to discredit it in the eyes of the public.

It order to do so, the physicians of the American Medical Association would mobilize a

discourse of science. It was, after all, their superior educations and devotion to an

empirical process that led regular physicians to form an association in the first place. As

an organization, they strictly adhered to the principles of ‘scientific’ medicine, published

peer-reviewed journals, and applied pressure to upgrade medical school standards.78 With

its pristine public image and impeccable credentials the Association was perfectly poised

to launch the assault on quickening on the basis of the distinction’s scientific efficacy.

The physicians’ claim to this discourse was not unprecedented. The science that

was “subordinated in the main to the imperatives of a morality whose divisions it

reiterated under the guise of the medical norm” existed, according to Foucault, throughout

the nineteenth century. 79 “Claiming to speak the truth, it stirred up people’s fears; to the

least oscillations of sexuality, it ascribed an imagery dynasty of evils destined to be

passed on to generations;” he says of this particular kind of science that made sex its

object, “it declared the furtive customs of the timid, and the most solitary of petty manias,

dangerous for the whole society; strange pleasures, it warned would eventually result in

nothing short of death: that of the individual, generations, the species itself.”80 Compare

this description to the American Medical Association’s 1871 statement on abortion: “and

it matters not in what way we turn our attention or in what way we direct our footsteps…

the same extensive, wide-spread evil is everywhere to be found, decimating the human
78
Mohr, 33
79
Foucault, 53
80
ibid, 53
family.”81

Physicians emphasized their scientific education and professional expertise as

impartial in contrast with a woman’s experience of her body, which was vulnerable to

bias. In an 1839 lecture at the University of Pennsylvania (where he was a professor of

obstetrics), Hugh L. Hodge explained the danger of the quickening doctrine was that it

allowed women too much agency in regulating her reproduction: “Women whose moral

character is in other respects without reproach; mothers who are devoted, with an ardent

and self-denying affection, to the children who already constitute their family [to be]

perfectly indifferent to respecting the foetus in the utero.”82

Physicians attacked quickening on the basis that it had no scientific significance.

Formally educated physicians had, for some time, recognized the fact that “conception

inaugurated a more or less continuous process of development, which would produce a

new human being if uninterrupted…[thus] quickening was a step neither more nor less

crucial in the process of gestation than any other,” Mohr writes. 83 “Many women never

quicken at all, though their children are born living.” H.R. Storer ridiculed AMA

propaganda, “Quickening is in fact but a sensation.”84 True, it was only a sensation, but as

Leslie Reagan counters, it was “a sensation that had emotional, social, and legal

meaning.... Quickening was based on women’s own bodily sensations—not on medical

diagnosis.”85

The preservation of the quickening doctrine in America’s legal system, first in the

common law and later in states’ statutes and criminal codes, allowed women the right to
81
Mohr, 75
82
ibid, 87
83
Mohr, 35
84
HR Storer, 32
85
Reagan, 12
speak publicly of and for their bodies. It offered a legal sanction of their recourse to limit

their fertility at their discretion any time prior to that point. In this way, it provided an

occasion for women to articulate their acceptance, or deferral, or refusal of the role of

mother. To discredit quickening in the eyes of the public and eliminate its significance in

legal discourse was to strip women of their right to speak in the sole instance they were

afforded it.

The physicians of the AMA, deploying their professional opinion from a place of

scientific authority, systematically dismantled the quickening doctrine through a series of

legislative assaults. For just one of many examples, consider the state of Ohio: state

medical societies applied pressure to legislature to change the state’s existing law, and

served as advisers to the special committee formed to investigate the problem of abortion.

The committee’s report read: “Your committee are of [the] opinion the prevalence of the

crime in Ohio is due to a considerable extent to the ridiculous distinction which the law

has made in the penalty it inflicts, depending on whether the offense is committed before

or after the period of quickening.”86

Between 1860 and 1880, 40 anti-abortion laws statutes were placed on state and

territorial lawbooks; 13 jurisdictions explicitly outlawed abortion for the first time; 21

states revised existing laws to be stricter87—almost all of this legislation explicitly

accepted the regulars’ assertions that “the interruption of gestation at any point in a

pregnancy should be a crime and that the state itself should try actively to restrict the

practice of abortion.”88 By 1900, abortion was illegal in every state in the U.S.89 In their

86
Mohr, 207
87
ibid, 200
88
ibid, 200
89
ibid, 226
systematic campaign to eliminate quickening, physicians destroyed the once-enduring

social construction of acceptable abortion any time prior to quickening. It was by virtue

of their campaign that the word “abortion” came to contain the connotations it does

today.

The word abortion had once been synonymous with our use of the word

‘miscarriage,’ and was qualified by the words ‘spontaneous’ or ‘induced.’ Inducing

miscarriage prior to quickening was not considered a moral or a criminal issue, but a

‘restoration’ of the kind discussed in Chapter 1. It was not until the American Medical

Association successfully convinced the American legislature and the American public of

the insignificance of quickening as a distinction of the life of the fetus that the word

acquired its modern meaning—one that is fraught with questions of life and death,

associations with religion and politics, and concerns about the exercise of power and

control.

In creating the word ‘abortion’ and using it to classify the once-innocuous

measures a woman took to control her fertility as both criminal and morally-bankrupt

acts, the physicians of the American Medical Association added yet another discourse on

sexuality to the multiplicity named in The History of Sexuality. In this way, the

physicians’ treatment of abortion exemplifies Foucault’s “repressive hypothesis,” in

which all manifestations of sexuality termed “unproductive” were silenced while

mechanisms of power reserved the right to speak of them through medical and legal

discourses.90

The utility in analyzing the physicians’ campaign in terms of Foucault’s theories

in The History of Sexuality, is in locating our current understanding of abortion in a

90
Foucault, Parts 1, 2, and 3
historico-theoretical context—tracing back to their origin our long-held associations and

beliefs about abortion and questioning their relevance and their purpose. It is in this

context that, after considering the criminalization of abortion itself, we can also consider

the decriminalization. In the landmark decision Roe v. Wade, the Supreme Court cited a

woman’s right to privacy as guaranteed by the fourteenth amendment in order to

invalidate the state statutes, lobbied for by the AMA, that criminalized abortion. In their

decision, the court sanctioned private, legal recourse to abortion through the first

trimester without state intervention. In doing so, it effectively reinstated legal abortion on

almost exactly the same terms under which it was protected by the common law—but

with perhaps with the ultimate irony, the court qualified the privacy of the decision to

terminate a pregnancy prior to that point as applying to the woman only on the advice of

her physician.91

Works Cited
Cangiamila, K. Abrégé de l’embryologie sacrée, Paris:n.p., 1745

Gregory, Samuel. Letter to Ladies in Favor of Female Physicians, Boston: George Gregory, 1848

Gregory, George. Medical Morals, New York: published by the author, 1853.

Hodge, Hugh L. Foeticide, Or Criminal Abortion; A Lecture Introductory To The Course On Obstetrics,
And Diseases Of Women And Children, Philadelphia: Lindsay and Blakiston, 1869

Lengum, G. Rationale of the Dirty Joke, New York: Grove, 1968

McLaren, Angus. Reproductive Rituals: The perception of fertility in England from the sixteenth century to
the nineteenth century, 1984

Mohr, James. Abortion in America: The Origins and Evolution of National Policy 1800-1900, Oxford:
Oxford University Press, 1978

Reagan, Leslie J. When Abortion Was a Crime: Women, Medicine and Law in the United States 1867-1963
Berkeley: University of California Press, 1997

Storer, David Humphreys. An Introductory Lecture before the Medical Class of 1855-56 of Harvard
University, Boston: David Clapp Printer, 1855

91
Roe v. Wade, 410 U.S. 113 (1973)
Storer, Horatio Robinson. Why Not? A Book for Every Woman, Boston: Lee and Shepherd, 1868

Smith-Rosenberg, Carroll. Disorderly Conduct: Visions of Gender in Victorian America New York: Knopf,
1985