No one who knew Ruth Barnett in her glory days ever doubted that the abortionist was a clever woman. Yet she had not anticipated the troubles that came to her in 1951. She had not read the handwriting on the wall, perhaps because the decade following the Reno caper was professionally tranquil and remunerative for her. Ruth had become so accustomed to feeling secure in the Broadway Building that when she began to hear about the arrests of her counterparts in other cities after the war, she was likely to cluck over a colleague’s misfortunes and, at the same time, feel certain that the excellence of her own practice and connections shielded her absolutely and made her different from less well-situated practitioners. In this, Ruth miscalculated.
Had she been more of a political animal at this time, the abortionist might have paid closer attention to the news that travelled the underground circuit, the stories about old midwives who’d been performing abortions for years, middle-aged chiropractors and nurses and naturopaths like herself who had never botched a case but had nevertheless lately been subjected to the hell of arrests and front-page mug shots, trials, and incarceration. It wasn’t only in Portland that the old deal with the cops was off by 1951; all up and down the West Coast and across the country the police were moving in on abortionists who’d never lost a patient. And more often than not, the cops moved against women abortionists on the theory that it was a darn sight easier to score a conviction when the defendant was a presumptively untrained, unskilled, and unprotected female.
Ruth was aware, for example, of the recent troubles of Laura Miner, the San Diego chiropractor Rankin had strong-armed in the thirties. Back then, Miner had been netted in the California raids, but the authorities had given her immunity in exchange for testimony against Reg Rankin, and afterwards, she had been more or less allowed to resume her own abortion practice once the furor died down. For eleven years following Rankin’s trial, Laura Miner pursued her work undisturbed by the law, but in the late 1940s she was targeted early in the postwar crackdown. Through her contacts in L.A. and Oakland, Ruth Barnett heard how, in mid-September 1948, Miner and her associates, Josephine Page and Nedra Cordon (who had been with her since the Rankin days), became suspicious that their office was being watched and might be wired. The women were correct. Investigators from the San Diego D.A.’s office had been observing the office for months, using binoculars and movie cameras. They had been filing regular tallies of women coming in and out of the place. Later the police revealed, showing films in court of Miner’s clients, that they had recorded fourteen women on June 9, 1948, twenty-two on June 11th, twenty-one on June 16th, and so on. The D.A. was able to mount a successful case against Laura Miner and her associates despite the fact that no client’s death or injury was at issue, and no matter that all those present at Miner’s trial could hear for themselves the testimony of the witnesses for the prosecution—the women who’d sought abortions from Miner—that they had been brutally coerced to testify against the abortionist and her associates. In the late forties, none of this mattered, and the three women were sent to jail.
Ruth Barnett’s contacts around the country also told her in these early postwar years about the fate of women like Florence Stallworth, a fifty-two-year-old black public health nurse who had trained in the thirties at the Freeman’s Hospital in Washington, D.C. For years, Stallworth held a series of very responsible positions in hospitals in North and South Carolina, until she allegedly agreed to perform an abortion on a young black woman who didn’t have enough money to meet the fee of a doctor she’d consulted first. Doctors and other colleagues, her neighbors and minister, all of whom had known Florence Stallworth for years, lined up to testify at her trial. They spoke of her excellent character and her high level of professional competence. Her medical colleagues took pains to cast considerable doubt on the charge of abortion. But Florence Stallworth was convicted anyway and sent to prison, leaving her near thirty-year career as an effective and respected health-care provider in shambles.
The fact was, the climate in Portland that sanctioned Ruth Barnett’s arrest in 1951 prevailed around the country. In cities everywhere, politicians and police exploited the power of the exposé, the fear of a corrosive enemy within, and the widespread desire to enforce maternity in order to fuel the postwar crackdown on abortionists and on women who persisted in seeking abortions. It seemed that abortion was acceptable, albeit illegal, when people were standing on breadlines or when husbands were being shipped out to man the infantry lines and might never return. But abortion was quite another thing when the United States was glowing triumphant, the land of plenty. Under these conditions, abortions were unnecessary. They were unbecoming and unacceptable.
Looking back across the postwar landscape, one notices a marked elevation in the number of abortion trials in the decades just before Roe v. Wade. But a second look reveals that, relative to the vast number of illegal abortions performed in that era (estimates range from two hundred thousand to over one million a year), the number of practitioners prosecuted and the number of women forced to appear as witnesses against their abortionists in court was still tiny. No doubt the fact that women likely to seek abortions (or likely to be exposed in a raid) were from every socioeconomic group, were from every racial group, were pubescent to menopausal meant that, unlike participants in other criminal activities (but rather like some Prohibition era imbibers), they were not always so easily cast as the malefactors one loved to hate. In other words, many D.A.’s and police departments continued to leave abortionists alone out of a distaste for embroiling their otherwise respectable and ordinary female clients in public scandal. Moreover, many men, including powerful ones, continued to have a stake in the termination of many pregnancies and did not want to see all the abortionists run out of town, either before or during the crackdown time.
It was mostly in places like Portland (and Los Angeles, over and over again) that the authorities, needing to bolster their public image, perceived abortion busts and abortion trials as a valid ticket to that end. But what does stand out, alongside the elevated, if still modest, rate of arrests and the sensationalism in which anti-abortion activity was couched, was the special vulnerability of lay female practitioners, no matter that the violations committed by other abortionists, including male doctors, were exactly the same.
Carlson Wade, a chronicler of abortion activities in the postwar era, cited a situation in Iowa to make the same point. Two cases were brought before a court in that state. “In one abortion the defendant was a physician, offering proof that it was necessary. The court agreed with the physician and the case was dropped. In the second abortion case the [female] defendant was not a physician. While the conditions in favor of abortion were almost identical in both cases, the court filed suit against the second person and offered this reason: The defendant was not a member of the medical profession and has no right to practice medicine and no presumption is indulged under such circumstances that the act was performed in good faith and for a legitimate purpose.’ ” Wade remarked, “From the above it is clear that in many prosecutions, the court is primarily interested in who performed the operation, rather than why it was done.”
Ruth Barnett’s experiences in 1951 and throughout the decade of the fifties were exemplary in this regard. The manner of her arrest and the way she was portrayed by the press set her apart from the other—male—practitioners arrested with her in Portland. Her trial, and the trials of other female abortionists elsewhere, would be heavily spiced with the sexual flavor of gender, as well. In fact, gender differences continued through every phase of the punitive process. After the 1951 raids in Portland Ruth Barnett was the first of the abortionists to be imprisoned, and many of the men never served time at all. Dr. Harmey Dewey, for one, the elder of the two Dewey chiropractors raided on July 6, 1951, was acquitted of the abortion charge on December 7, 1951. His case, in which a woman client was brought to court to testify about the injuries she sustained at Dewey’s hands demonstrates one crucial way, in particular, that the trials of male abortionists were distinguished from those of women like Ruth.
In Dewey’s trial, a pathologist from the University of Oregon Medical School, Warren Hunter, appeared for the prosecution and testified that the woman in question (who was, by the way, named in the newspapers) had sustained injuries to her uterus that were, as he put it, “too severe for her to have done them herself.” Despite this expert opinion, Dr. Dewey was able to convince the jury that the woman had, indeed, aborted herself. His success was apparently related to the fact that he was able to produce two colleagues, Dr. James Silvas and Dr. Thomas Burke, to corroborate his claim. The woman with the torn uterus also testified. She said that Dr. Dewey had done the job and that she had never even laid eyes on Silvas or Burke so they couldn’t possibly know the facts of her case. But the jury did not buy her account. They believed the trio of practicing doctors. (Several years later, Dr. Silvas committed suicide after multiple charges of performing illegal abortions had been leveled against him.)
Things never went so well for Ruth Barnett in the courtroom as they had for Dr. Dewey, not in her first trial in the spring of 1952, nor in subsequent trials that stretched across the 1950s and deep into the 1960s. The fact was, the courtroom was no better place for an accused woman to be than the front page of the morning paper. The front page carried prosecutorial weight and conviction, although these thrusts were occasionally and temporarily muddied by the ambiguities necessarily embedded in an abortion bust. In the courtroom, on the other hand, the narratives were starkly unambiguous. The story that the prosecutor typically told about a female practitioner’s greed and lack of skill and perversity was so unambiguous that the woman abortionist rarely fought her way out from under them. Ruth never did.
Ruth Barnett’s abortion trials reveal the courtroom pattern that emerged and held steady whenever and wherever these women were on trial. The elements of the pattern were bold and fixed, and produced an effect that was both ordinary and bizarre. To begin with, the abortion cases became first-rate occasions for men—doctors, lawyers, judges, police, jury members—to gather together in a public place and affirm their right to govern women’s bodies, to define women’s rights, and to enforce women’s vulnerability. Second, Ruth’s trials (and the trials of more than fifty other women abortionists whose ordeals were matched against hers) were dramas that titillatingly pitted one woman against another—the alleged abortionist against her putative client—and milked the encounter. Finally, and not surprisingly given the first two governing elements, the whole event was drenched in sex. Wherever it occurred, the trial emerged day by day and in sum as a species of pornography, a cryptoporno show in which, in the name of the law and public morality, men invoked women’s naked bodies, their sex, and their vulnerability in a style that was both contemptuous and erotic. It is shocking to put it this way, but there is really no other way to describe what happened when men dragged women into court to account for abortion.
Ruth Barnett’s first trial, in the spring of 1952, was a fitting sequel to the lubricious extravaganza the press had dished out ten months before. In the courtroom, as was typical in these cases, the lawyers on both sides argued their cases by discrediting a female as being, paradoxically, both sexualized and not a woman. Throwing delicacy and gallantry to the winds, they relied on the principle that a female who could be sexually humiliated in public was, by definition, a useful tool, a slut, a criminal, or maybe all three.
Charles Raymond, the assistant district attorney assigned to prosecute Barnett in 1952, built his case on the back of a teenage girl, “Ann Kelly,” who had been brutally raped by her cousin and brought by her distraught parents to the Stewart Clinic for an abortion in the winter of 1950. According to Ruth, the law heard about this young girl’s ordeal as a result of her parents’ attempt to get the rapist to help pay for the abortion.
“The cost of the operation had bitten deeply into the family’s small savings,” she said. It seemed only reasonable to them, therefore, that the cousin responsible should pay at least a part. They wrote to him. But when their letters brought no reply, they decided on another tack. Safe in another state, he might ignore their pleas, but they thought he would listen to the law. The Kellys went to see the district attorney of their downstate county, explaining they sought no publicity, did not want the cousin jailed but just frightened enough to pay his share. Would the D.A. write a letter using big, official words, they wanted to know? Would he throw a scare into the rapist? Enough of a scare so the offender would rush to the post office with a money order to cover the expenses of Ann’s operation?
“The reaction to the Kellys’ request was not exactly what they anticipated. Indeed, the D.A. was interested. But his office was not a collection agency. The Kellys would have to find another means of obtaining redress. Greater issues were at stake here. The D.A. was not speaking of rape, brutal and criminal though it had been. That apparently did not concern him. No prosecution against the cousin was planned, either then or later. But the operation—abortion—was against the law. He told the Kellys [erroneously, in fact] they would be compounding a felony if they refused to divulge the details. Confused, frightened by threats of arrest and prison, the Kellys talked freely.”
What the Kellys said to the D.A. became the basis for the case against Ruth, and the ammunition Raymond carried into the courtroom, where Ann Kelly was put on the stand and made to describe, again and again in open court, the rape, the subsequent infection, the gynecological examinations (“Describe for us, Ann, how you were positioned on the doctor’s table? Were your legs raised and your knees spread wide apart?), the abortion. When the prosecution was finished portraying Ann Kelly as a pathetic victim of Ruth’s vicious abortion mill, Ruth’s lawyer stood up and characterized the girl (to Ruth’s horror) in the terms any defense lawyer on an abortion case might use in those days. Offering the jury a chance to see that the Kelly girl and not Ruth was the tainted female, he suggested the girl was “a fallen woman past redemption who should be exposed.” The jurors and the newspapermen and the ordinary citizens who filled the courtroom gazed at the prim, frail girl on the stand whose legs had been spread apart now so many times over in their minds’ eye, and they knew they had to settle on the essential identity of Ann Kelly. The identities they were to choose between were only two: the prosecutor’s version or the defense attorney’s. The way it worked, after the rape, Ann Kelly’s dignity died first in the hands of a D.A., and then again on the courthouse steps. As for Ruth, ever since the headlines of the previous July, her claim to public dignity was fatally compromised as well.
A great many of the details of Ruth Barnett’s 1952 trial have not been preserved, because although the abortionist initially appealed her conviction, she later withdrew the appeal as part of a plea bargain. As a result, no transcript of these proceedings has survived. What does remain, however, makes it clear that the Portland trial was in every way representative of other, similar proceedings of the time, and a great many transcripts of these trials have been preserved. In St. Louis, Los Angeles, Sacramento, Trenton, all over the country, such trials demonstrated a nationwide willingness to pump up the courtroom with the gaseous vapors of cryptoporno when women were on trial.
The available transcripts allow us to walk in and out of courtrooms in the 1950s and observe women abortionists on trial. What was common to all these courtrooms was an atmosphere dense with sex and smut, and with notions about women that could have stimulated misogyny in even the most generous-minded observer.
Before entering the halls of justice, it’s important to understand the broad social consensus that encouraged men to speak so loudly and with such confidence there. The fact was, when politicians and police and journalists mounted a raid on an abortionist’s chambers, they needed to arm themselves with more than the pressures of political exigency (and the often elusive search warrant). They needed a cultural sanction in the form of experts’ ideas about women practitioners and their patients that unequivocally defined those females as fodder for the restraining hand of authority. Without the cultural assumptions that supported their presence in the courtroom, stained the lawyers’ language, and shaped the entire proceedings, the trials might have played out differently indeed.
In the postwar years, the medical experts were never at a loss to describe the character of such “types” as Ruth, a naturopath and an abortionist (almost always referred to as “midwives,” no matter the particulars), or their right to ply their trade, and none of what they had to say was good. The assessments followed a different trajectory from the smear job that, for example, The Oregonian indulged in, but fit together with it nicely. Central to the assessment was the issue of “midwifery,” a tag that had, in the relatively recent past, usually conferred a legitimate distinction on a woman who looked after the gynecological and obstetric needs of other women. But by the middle of the twentieth century, in every region of the country, that distinction had shriveled and died as doctors cornered the market on providing these services. Now midwives were all but fully degraded as members of a moribund profession, and their lingering association with abortion proved it. Fueled by a combination of popular prejudice and medical dicta, all women abortionists, whether they were naturopaths, public health nurses, or chiropractors, were cast as a species of midwife and thus, by definition, as out-of-date charlatans and even sadists.
Doctors regularly complained at mid-century that midwife-abortionists were dirty and unskilled. They charged that if a midwife could show any credential at all, it was a contemptible female credential, no more than that. Obstetricians, psychiatrists, and other male experts made it fashionable and evocative to describe a midwife-abortionist as being tied to ancient, antiquated, even animistic traditions. One commentator described a woman typical of practitioners at mid-century. He said that Rachel was “a wrinkled, tottering Negro woman who was just a few months short of her ninetieth birthday. Rachel had lived in Fairfax County for more years than she knew. Her mother, once a slave, had been a midwife. Rachel had learned the art from her mother and had worked as a midwife all of her active life. By the time she had grown too old to keep up the work, she found that there was no longer much demand for midwives anyway except for an occasional request for her services as an abortionist. Rachel lived in a smoke-blackened grimy log cabin back in the woods … a surprisingly primitive little voodoo refuge.”
It also became fashionable to cast midwife-abortionists as know-it-all harridans, isolated in crazy covens. A novel about the abortion scene in New York after the war includes a characteristic treatment of the woman abortionist as witch. “The only ones you could go to were the clannish group of midwives who earned extra money for their families by doing abortions. The midwives sometimes met to discuss their methods, babbling their systems to each other like witchdoctors in passionate search of the miracle solution. Over coffee or tea, they speculated about tissue-tearing mixtures or how to shape kitchen utensils so there was only a little pain.”
Probably most fresh and convincing to a public steeped in the misogynistic psychiatry of the era, midwife-abortionists were described as emotionally distorted females. A court psychiatrist described one such woman as “without psychosis but an unethical type with a strong need to be punishing, domineering, and even sadistic toward members of her own sex. She feels inadequate as a woman and has some masculine traits both psychological and physical. Her most compulsive need to amass cash causes her to deprecate her very real financial holdings and she has an irrational fear of poverty which is deeply rooted on a neurotic basis.” The psychiatrist determined that this unfortunate specimen was virtually a sideshow freak, as well. Drawing on the report of the extensive physical examination this woman underwent upon entering prison, he implied that her emotional distortions were mirrored by her repulsive physical anomalies: “There is an unusually large clitoris present which extends beyond the prepuce and the labia. The mammae are seen to be flat with undersized involuted nipples. Hirsutic growth is remarkable and somewhat masculine in distribution.”
All this almost fully explained the woman’s profession, but required one further observation to be complete. This was that women abortionists, as a class, were “reacting in large part, to an unconscious need to reject children or to deny them to others of their sex by reason of certain emotional deprivations in their own background.”
Here was the unkindest cut of all: women abortionists were not women, not mothers, and were compelled by their own disabilities to destroy other women’s potential as women and mothers. Psychiatrists had license to cast these aspersions as part of their general appraisal of “independent” women. Other doctors, the media, lawyers, and judges could pick up on the diagnoses, trade them back and forth, until, woven through the culture, they perforce became true. When Ruth Barnett sat in the courtroom with only her native aplomb and her furs to protect her, she was the personification of this freakish type, and a spectacle. People stared, and they were altogether prepared to believe the worst.
Defense attorneys had these pejorative images and the ugly stares to overcome when they tried to drum up respect, or at least some sort of sympathy, for their clients. But in the process of trying, they never failed to position their ace in the hole front and center. Inevitably, that ace was the cluster of associations with which the same group of experts who defined midwife-abortionists in those days defined girls and women who sought abortions. When the defense attorney shifted the jury’s judgmental eye onto the witness for the prosecution, he was making an effort to convince them that it was she who was perverse, not his client.
In almost every way these females, too, were discredited before they stepped into the courthouse, mainly because so many physicians, psychiatrists, and other cultural arbiters regularly declared in the media and elsewhere that the only real woman was a happily pregnant, married woman or a mom. The experts expanded the picture by explaining that a woman who couldn’t get pregnant was prevented by her own neuroses, and that any woman unhappily pregnant was likewise neurotic. It became self-evident, they said, that any woman who wanted, and especially any woman who obtained, an abortion was sick. Using colorful tropes, the experts insisted on these diagnoses. Alfred Kinsey, for one, reminded his colleagues, in the midst of a discussion about the neuroses of women who sought abortions, that during their medical training, all doctors encountered the old saw, “menstruation represents the red tears of a frustrated uterus.”
Another doctor provided grist for a defense lawyer trying to undermine the credibility of his client’s accuser when he identified a syndrome he called “willful exposure to unwanted pregnancy,” or WEUP. The physician claimed that this condition was particularly common in women “who are immature, psychoneurotic, or under emotional stress.” A prominent woman psychoanalyst went several steps further in cataloguing the disorders an abortion-seeking woman suffered. The psychoanalyst, Mary Romm, claimed in a 1954 volume on therapeutic abortion that “the very fact that a woman cannot tolerate a pregnancy is an indication that the pre-pregnant personality of this woman was immature and in that sense can be labeled as psychopathological. The problem centers around unresolved oedipal situations. Exaggerated narcissism is present in all cases. Since pregnancy and childbirth are the overt proofs of femininity, the exaggerated castrative factors become overwhelming and threatening. Identification with the mother is predominant and hostile. Receptivity in the feminine sexual role appears as debasing. Competition with the male is at all times at a high pitch. This, in turn, is an interfering factor with tender feelings toward their husbands. These maladjusted women cannot identify with the accomplishments of their husbands; they cannot enjoy the success of their mates. Envy and jealousy of men are rampant. Pregnancy as a challenge of femininity is unacceptable to them.”
Doctors made overwhelming, devastating charges like these against unwillingly pregnant women over and over in these years, when abortion cases were more likely to be found in court than they had been. It is likely that, at the time, the doctors who crafted such theories were pleased to see their work popularized and used, if sometimes obliquely, at trial.
Sometimes the “diagnoses” showed doctors to be very angry at what they considered the childish willfulness of such women. An obstetrician in the early fifties, whose patient begged him and a psychiatrist to support her request to a hospital abortion committee, described the woman later to a colleague as “a spoiled brat badly in need of a spanking.” He said he could see no reason why anyone should listen to her complaints. The psychiatrist agreed completely, saying the girl was “merely trying to put on a show, and would carry the child to term if no attention were paid to her.”
Like the doctor who defined the WEUP syndrome, physicians in the fifties often took the position that an unwanted pregnancy was a woman’s fault, or at least her doing (as in, “she got herself pregnant”). Dr. Iago Galdston believed that if a woman claimed later to regret the pregnancy, she had best first examine the manipulative impulses she’d indulged to get herself that way. As far as he was concerned, women too often were simply victims of their own stupidity. “Not uncommonly,” he said, “a young lady who has been going around with a young man in her judgment all too long, might think that, if she becomes pregnant, it would hasten the marriage.” Alternately, he pointed out, “a woman who is utterly frustrated in her relationship with a man may try to compensate for her frustrations by becoming pregnant, only to find that the unsatisfactory relationship is aggravated rather than made tolerable by the pregnancy.”
Of course, not every lawyer or judge or juryman involved in abortion cases had encountered Dr. Galdston words or the other medical and psychiatric profiles common in that era of “abortion midwives” and “aborted women.” But most had encountered popularized versions in magazines of all types, in novels, or in the dark, merely hinted-at corners of fifties movies. By the time larger numbers of women found themselves in court, forced to tell about their experiences in the dangerous arena of criminal abortion, just about everyone knew what they were supposed to think about these sorts of females. A woman like Ruth in the defendant’s seat, or a girl like Ann Kelly in the witness stand, triggered some or all of these associations in the minds of those who entered the courtroom to size them up. And the assessments attached to these women a priori imparted a skepticism that rendered the promise of presumptive innocence absurd.
As the women abortionists and their clients filed into courtrooms in cities around the country in the late forties and fifties, they too were aware of the mounting reservoir of hostile sentiment against their kind. They were aware that the typologies meant to capture them were as threatening in a court of law as the indictment or the subpoena that had brought them inside to begin with. Indeed, the abortionist and her clients all had a great deal to fear.
The stories that women tell today about what it was like to sneak off into the so-called back alley almost always mingle shame with fear and determination. It is never easy to resist the law and go outside it to achieve an end. In those days, especially in the absence of a feminist community and a feminist argument for abortion, it was very difficult to hold one’s head high and to counter the widely held characterizations of the women involved. The courtroom became a house of horrors for both the abortionist and her client who entered it. Feeling the weight of both legal and moral censure, they were robbed of both pride and dignity. Simone de Beauvoir, in another context but in the same era, described a piece of what the internal confusion must have been made of. She wrote, “Many women are intimidated by a morality that for them retains its prestige even though they are unable to conform to it in their behavior; they inwardly respect the law they transgress, and they suffer for their transgression.”
These women entered the courtroom suffering the indignity of having been prepackaged and prejudged. Their just deserts were likewise predetermined, by judges like Walter Tooze in Portland, who said from the bench that “all good citizens condemn the abortion racket. It long has been a foul stench in the nostrils of the body politic and its complete eradication is demanded by every sense of morality and decency.” There was a movement afoot to accomplish the eradication by, as one medical enthusiast put it, “taking militant action. It’s up to us,” he said. “Let’s make pregnancy reportable.” A lawyer suggested a different tactic to respond to women determined to control their own fertility: “In order to discourage women from seeking to have abortions performed, it is submitted that the women, too, should be penalized. After all, it is often she who initiates the commission of the crime.”
It is a wonder that twenty women a day and sometimes more slunk into Laura Miner’s office in San Diego and Ruth Barnett’s in Portland, given what they risked and what a number of them actually came to suffer in the courtrooms of the time. The fact that so many girls and women made the trip speaks volumes about both the latitude fertile females had come to depend on and their determination to preserve the choice, even while choice remained illegal and had to be exercised in a poisonous context. Yet, many women desperate for a Ruth Barnett or a Florence Stallworth were indubitably scared off by the threat of the kind of exposure that hung over the practice of criminal abortionists.
It is very likely that as the public attack on abortion, abortionists, and “aborted women” grew fiercer in the forties and fifties than it had been since the end of the nineteenth century, more women than ever before felt compelled to protect themselves against public or legal exposure by resorting to the most dangerous possible solution to their dilemma: self-abortion. Abortion trials in the postwar years were littered, in fact, with evidence that women tried everything before they tried a “legitimate” criminal abortionist. As Ruth Barnett pointed out at the time, “The majority of women who came to me had already taken any of the thirty or forty different pills sold over the counter of drugstores.” Into the fifties and beyond, pregnant women tried quinine pills, ergot tablets, soaps, hot mustard baths, tansy tea, turpentine capsules, douches, slippery elm (the “old maid’s method”), and some tried throwing themselves from high places. A fourteen-year-old black girl in Texas drank a hot ginger tea and when that didn’t work, she inserted a penknife up her vagina. Only then did she and her grandmother go looking for a woman who knew how to help a desperate girl.
In the largest sense, the abortion trials became arenas to address a culturally crucial question, that is, who is not a “real” woman? By defining female abortionists and their clients as perverse and unwomanly, the qualities of real womanhood were reaffirmed. The lawyers, the doctors, and the judges in command of these trials met no resistance as they defined the female transgressors before them. The political context made it easy to interpret an act of “exposing deviance” as an act of concern for the safety of the community. The social context sanctioned efforts to reinforce rigid gender roles in the aftermath of the war. The men who ran the show almost always adopted an offensive mode to promote these defensive ends, and the offensive mode was cryptoporno, a way of titillating the crowd while at the same time invoking shame and repugnance.
The show in the courtroom was rigidly formatted and rarely varied. First, both the abortionist and her client were either silenced in the court or severely constrained by both the rules of evidence and the representations of “her type” that made objections sound pitiful or like lies. (Ruth Barnett never testified in any of her trials after Reno, due to the fact, she said, that her lawyers knew she would speak out boldly and truthfully about her activities, thus killing all chances for acquittal.) Then, two men—the prosecutor and the defense attorney—slugged it out before an audience of citizens, for the purpose of proving which of the two women—the abortionist or her client—was more completely alienated from womanhood. They used arguments designed to prove that the “other” woman lived a life too close to sex and that she was alienated from maternity as well. On both sides these were powerful thrusts, since then (as now) it was so often membership in the cult of true motherhood that saved women from sexual degradation. And in an abortion trial, the core issue in those years was much more the charge of murdering motherhood than it was the charge of murdering the “unborn child.”
Specifically, the prosecutor’s job was to convince the jury that the woman abortionist was fundamentally a predator, a witch-like female who preyed on women’s bodies without any feeling. The prosecutor needed to conjure up a creature who had power over others of her sex, helpless others whom she made lie down and spread their legs while she inserted instruments into their privates. A judge in Cincinnati listened carefully to the prosecutor and got the point. Mary Paige, a long-time, highly skilled abortionist in that city was arrested in 1954, and the judge imagined out loud what the abortionist used on her visitors. The instruments brought into court, he said, “have formed a macabre picture in my mind, reflecting the tortures of the medieval dungeons and the places of torture as we read of the practice in the olden days.”
The prosecutor created this macabre picture of a predatory hag and then tied the interests of the creature he invoked through sex and torture to greed for money. The prosecutor in the St. Louis trial of Sophie Miller offered a related spectacle to the jury: “Any woman who would be in a business like this, can you imagine what kind of a character she has? Abortions! Taking advantage of the fact that girls get into trouble. You take a woman like Sophie Miller—who is not desperate like this little girl here—but who got into the business because she could make money that way. All she wanted to know was, ‘Did you bring the money?’ ”
The “little girl” made to testify about her abortion might be, in fact, a young mother of four, a professional woman of thirty-two, or even a grandmother in her forties, but the prosecutor’s opposite was bent on making this female small, and at the same time insidiously helpless. The defense lawyer’s fundamental question was, Who could believe a woman like that? During the trial of May Ramsey in California, the defense lawyer posed the question particularly volubly and vividly, but still typically. The man stood up—one could see his lip curl—and he pointed at the unmarried woman known in the courtroom as the “prosecutrix.” “They produce Miss Brown,” he sneered, “to whom they have given immunity from prosecution. Miss Brown and girls of her type are not the type of girls who can be relied on and believed in this or any other type of situation. They are immoral, they are dishonest, they would do anything for their own welfare. There has been many a girl who has told her boyfriend that she needs $250 or $500, and then goes through some kind of a maneuver because she has missed one menstrual period and then pockets the rest of the money and then buys pretty clothes. And you saw how Miss Brown was dressed and her way and her style of appearance. Do you think she would be above it or beyond it? Are you going to take the testimony of that kind of girl?”
In other courtrooms it was not enough to discredit the prosecutrix (who was generally present under the harsh, coercive threats of the D.A.’s men, who told her they would publish her picture in the papers or take away her children if she didn’t appear) by associating her with trickery and slatternly ways, and with being “that type of girl.” In other courtrooms, defense attorneys accused women who admitted to having had abortions of being drunks (because they met the abortionist in a bar), trollops, stupid, not sufficiently embarrassed, immoral, unwed, and unfaithful, of being, in short, the sort of female who can be neither respected nor believed.
One defense attorney was very clear on what the proceedings were about. His opening argument drew the battle lines of perversity. “The prosecutor is going to paint this girl here to be a Simon Pure girl and say that this woman [the abortionist] here is a terrible woman. I am sorry this little girl here got herself messed up, but it’s not the fault of my client. What did this girl do? She got herself in a desperate situation and Lord knows what these girls will testify to. She would have done anything to get rid of that fetus. The girl took sixteen ergot pills, day after day. Day after day she was taking hot baths, doing anything to get rid of that baby, and then she goes out looking for someone who is going to save her. It makes me angry how a girl like that gets up on the stand and wants to hurt somebody. Now,” he concluded, “do you think a girl like that is on the square?”
Sometimes these women on trial spoke out for themselves, or tried otherwise to defend themselves against the vicious attacks. Most often a woman was direct and honest and tried earnestly to get the court to understand that she was a good person. A forty-year-old mother of two who had been crudely described in court as a “divorced woman who during the month of December 1953 had intercourse on two occasions with some man not her husband” was heart-wrenchingly straightforward on the stand. “Well, I didn’t feel I was in a position to have a child. I was divorced and I had two children to take care of and I didn’t feel I could take care of another child. It was not a matter of not wanting the child. It was a matter of not being able to support it and take care of it.”
Other women were not so plaintive. But no matter how they tried to defend themselves, the gesture was swept aside or used against them in the abortion courtroom. In a 1948 trial in Sacramento, the defense attorney demonstrated a most effective way to discredit a woman who had tried, in her own way, to hold onto her dignity. The prosecutor should have “prevailed upon Mrs. Albert,” he said contemptuously, “to either remove the gum from her mouth or at least not to chew it with such gusto. For some reason this woman was most antagonistic toward me. As the old saying goes, if looks could have killed, I would have been stretched out on the floor of this courtroom like the proverbial block of ice. Mrs. Albert is hard-boiled, she is unfemale.”
At some point during the course of the trial, the defense attorney inevitably used still another strategy to discredit such women. He invited them to tell stories about the cruelty and coercion the police had used to get them into court. In another sort of case, in another cultural climate, stories like these might have created sympathy for the women; here they simply deepened the sense that a woman who got an abortion was sickeningly weak, vulnerable, open, and probably lying under pressure. The Woman’s Home Companion reported in 1955 that when the law tracked down an abortionist’s client, “in all probability the detectives will threaten to arrest her unless she tells who treated her,” despite the fact that an arrest was counter to abortion statutes. The women involved, however, were usually terrified and shamed when cops showed up at their homes or offices with photos showing them entering an abortionist’s office. They were not familiar with the letter of the law. And now in the courtroom, they were forced to relive the degradation of the police interrogation.
At Laura Miner’s trial in California, for example, Jackie Temple, who was shaking in the witness box, was grilled by the defense lawyer: “Did they tell you that they would drag your name through the mud in the newspapers unless you came here and testified?” Jackie whispered, “Yes. They said it would be a lot of unpleasant publicity for my little boy. They just kept hammering and beating questions at me and I had to answer them.” The lawyer did not take a chance that the jury missed the point of all this. He said, “They told her they would prosecute her if she didn’t come down and they would throw her into jail and take her little boy away.” Don’t forget all that, he insisted, when you evaluate this woman’s veracity.
Another woman who testified at Miner’s trial told how she had sought an abortion because, during the first weeks of her pregnancy, she had contracted German measles. She was aware that if she carried the pregnancy to term, the baby would likely be born deeply damaged. She told how a policewoman posing as the receptionist in Miner’s office suddenly grabbed her arm. Then, she said, “Two men rushed in and grabbed me by the other arm. And I was so scared. I tried to call my husband but they wouldn’t let me. They said they were taking me to the County Hospital for an examination. But they took me to the D.A.’s office. I was there about an hour, being hounded over all the questions.” Again, the defense attorney tried to show the jury that a woman who had been treated brutally was a female who could not be believed. She was, instead, a pitiful dame who was coughing up the story some legal tough wanted her to tell. In this case, the woman told an effective tale of the police coercion she’d endured in Laura Miner’s office. It was, she said, “a feeling like you see in the moving picture shows of two Nazi agents. I was being kidnapped, and I was completely paralyzed at the time.”
Sadly, it was not unusual for the prosecutrix to feel paralyzed when confronted by the police, by the typically aggressive defense lawyer, by the courtroom setting. A seventeen-year-old Oakland girl named Marlene, whose parents took her to Sacramento for an abortion in 1950, found herself being grilled several months later in court by her abortionist’s lawyer. The man was trying to establish, in the usual fashion, that the girl had implicated his client merely because she had been threatened with prosecution herself if she refused to do so. Here the defense lawyer began his job of reducing Marlene to the status of an unbelievable and pitiable fool by badgering her about her use of words like “erect,” which he implied a “good girl” would not know. He needled her about how she came to use such a highly technical term as “fetus” in her testimony (“Who fed you this word? Who have you been listening to?”). And then the lawyer hammered away at the role that shame played in bringing her, finally, into court. “You and your mother and father determined that your pregnancy would expose you and your family to a disgraceful situation, is that true? And you determined that you would quietly attempt to eliminate such a thing transpiring, is that so? You were cognizant of the embarrassment that it would bring upon you and your family? Your father was very concerned about it and wanted the condition eliminated and the family saved from disgrace? Likewise your mother? You were fully alert to the fact that it meant disgrace and embarrassment to you and your family, is that correct?” To each question, Marlene whispered, “Yes,” and by the end of the session, the lawyer felt quite sure he had made his rather odd case that a young girl and her family facing the disgrace of illegitimate pregnancy would do anything, including lie about his client, in an effort to protect themselves.
The defense lawyer’s perverse sensitivity to the shame that haunted a girl or woman who’d gone for an abortion hardly stopped him from pushing the shame into full-blown public humiliation if it would help to further discredit his client’s accuser. One surefire way to do this was publicly to shred a woman’s claim to sexual modesty and propriety. A popular tactic was to get the girl to admit that she had slept with a man not her husband, or that she was just plain promiscuous. In the trial of Ida Steadman, for example, the defense attorney’s trajectory was typical. “You have been pregnant before?” he asked Polly Smith, the girl who had gone to Steadman for help. “And you were not married? You have never been married, have you? Who is the father of this child, if you care to tell, or would you care to tell us if the same man was the father both times?” At this point, the prosecutor objected. (Polly, of course, had no lawyer of her own, despite her obvious need for a champion; she was merely a witness for the prosecution.) But the judge found none of the foregoing questions objectionable. Not surprisingly, Polly did. “Well, I’d rather not answer these questions,” she said, but the judge made her respond.
In all of these trials, girls and women were pressed in the same way. In California, a young woman was asked, “Do you remember telling Mrs. Garcia [the abortionist] that it was not your regular boyfriend who had caused your pregnancy, but another man? And that at that time you didn’t want your regular boyfriend to know this?” In St. Louis, a defense attorney who established the unmarried status of the prosecutrix as soon as she took the stand remarked, “You should have thought of marriage before you got whatever you got.”
In a variation on this strategy, some defense attorneys believed they could help their case by shredding a woman’s integrity because she had been willing to disassociate sex and maternity. In a 1956 trial the lawyer addressed Vera Black: “You are the girl who said you and your husband could not afford a child, is that right? I believe you own a 1957 hardtop automatic, don’t you?” When the attorney was asked to justify his question, he said, “If she can afford a new car and not a baby, it certainly casts doubt on her credibility as a witness.” A bit later, the lawyer added, “It is easy for me, as a lawyer to swing into a girl like Vera Black. I have no malice toward her. My position is to be a lawyer. Her business is to be a mother which if she would be, she would be a very good one, probably.”
Unfortunately, it was all too common for the defense lawyer to claim he was only doing his job and to assure the woman, “I’m not trying to embarrass you, you understand.” Nor was it uncommon for the woman on the stand to experience her appearance in the courtroom as a kind of living death. A young woman in San Francisco tried hard to participate in the proceedings as she had been instructed, even though it was much, much worse to be on the stand than anyone had told her it would be. Her attempt to explain herself makes that clear. “Well,” she said, “I had—had an abortion. I mean, you know, they. … I mean I don’t know how to explain it—Let’s see. She said something—I can’t remember. I’m so nervous I can’t think.”
Quite often, prosecuting lawyers seemed to act on the theory that the more sexual references and sexual innuendo they could spread around in the courtroom, the more perverse the case and the more perverted and culpable the accused. So, in the name of cleansing the community of the foul stench associated with abortion, the prosecutor did spread sex around quite thickly. Over and over and in every trial, women were forced to describe how they undressed in the abortionist’s office. They were made to respond to questions like this: “Miss Smith, when Dr. Jowers examined you—I don’t like to be unpleasant about the thing—but I just want to know if he inserted his hand or finger into your vagina?” And then, “Miss Polly, maybe somebody may not know what you mean when you say your ‘privates.’ Which of your privates was it that she injected her instruments into? Did she insert it into your rectum?” To which Miss Polly answered weakly, “I know where she put it, but I don’t know how to tell you.”
As in Suzanne Tyler’s trial near the end of the pre-Roe v. Wade years, girls and women in many of these postwar trials had pictures of their “privates” drawn on courtroom chalkboards (“to a pretty large scale, please”) for the edification (or delectation) of the audience. They sat in the witness box as the abortion table was wheeled into the courtroom and placed in front of them. They were told to speak up and describe exactly how they were placed on the table (“How far apart would you say your legs were spread?”). They were made to identify the “macabre” tools of the trade, also brought into the courtroom, and tell which ones were placed inside of which of their orifices.
Even after all this, the lawyers did not stop. Perhaps their own libidos were uncontrollably loosened by the eroticized atmosphere they had strategically pumped up. In many courtrooms, men began to play with sex and sexual references as if to make sure that the parties in attendance personally felt the erotic charge. In a California trial, for example, the judge noted “in all fairness” (in a setting, incidentally, where all the jurors were female) “You can get a person up on a table for a large number of things. I take it most of these women jurors have also been examined, most of them have been on a table.” A moment later, after everyone had gotten a chance to imagine the ladies of the jury with their legs spread, the defense attorney gazed at the abortion table thoughtfully and remarked, “Ah, but I don’t think I could get Mr. Macomber [the prosecutor] on that table, to tell you the truth.”
Sometimes the cryptoporno atmosphere was brutal. In a 1950 Georgia trial, a glass jar was brought into the courtroom. It contained a tiny fetus and, much more prominently, the vagina of a woman who had died at the hands of a real back-alley butcher. In the name of public morality and the need to display “the nature and the kind of injuries inflicted on this woman’s female organs,” the judge justified the presence of the jar in the courtroom, no matter that for some, the contents of the jar evoked the darkest, most violently perverse associations imaginable, and its contents were hardly necessary to prove the pregnancy or the death of the woman.
The fact was, the lawyers and the judges running these trials, along with the journalists covering them and the doctors and politicians who testified, and even the interested citizens who filled up the courtrooms, did not seem to find the eroticization of the court inappropriate or unseemly. In Portland, when women’s bodies were the subject of rough discussion during Ruth Barnett’s trials in 1952 and throughout the decade, the men in the room, at least, did not squirm, because such displays were not out of line with the tone of other public hearings in town. Many of them must have known, for example, what was going on down the street in the City Council chambers where their professional colleagues, their brothers-in-law and country-club bridge partners, could sometimes be found indulging in a bit of cryptoporno themselves. This was in the fifties, when Ruth often felt that every time she turned around, she was arrested again. At that time, the City Council was, as usual, avoiding the topic of abortion in chambers but having a pretty good time looking into the matter of the Star Theater, a downtown burlesque house that some council members believed should be shut down for “presentation of lewd, indecent performances on stage” involving nude women. The City Council members called a hearing on the subject, they said, because such performances tended “to create a public nuisance and a menace to the peace and general welfare of the city.”
Here again, in the name of public morality and decency, upstanding men in the community had—and took—the chance to share with each other their visions of women’s naked bodies. In the City Council meeting devoted to the goings-on in the Star Theater, things got hot quickly, and they stayed that way. A number of men who had attended the burlesque show were invited into the august chamber on the evening of November 19, 1955, to tell the council members what they had seen. Apparently, the members did not feel that one or two reports would suffice. They wanted to hear a lot of versions. The string of men who appeared before the council members described “a pretty animal type show.” They described girls who “showed everything they had” in as “good a solo orgy you will ever find presented.” After reviewing the stripping and the bumps and grinds of performers dancing completely in the nude, one added that there had been “no attempt at hiding from the audience any portion of their private parts, but on the contrary,” he said, “there was nothing left undisclosed, and the act was just plain raw.” Each witness provided the same details, almost verbatim, as the man who came before him. Indeed, the City Council members urged each one to leave nothing out. In the end, all the reports were explicit, appreciative, and censorious in the way that cryptoporno always is.
The authorities directing the cryptoporno shows in the council chambers, just like the men in charge at the courthouse, shared a dreadful sense in the postwar decades that the gender roles and gender relations they’d depended on were threatening to give way. The fact that they and their peers around the country conducted such proceedings so brutally is an indication of how sharply the authorities perceived the emergence of a cultural shift and how sharply they felt the threat it represented. In these public venues where women were on trial, the script called for degraded, humiliated, thoroughly vulnerable females, divided against each other and exposed. The most private facts of their lives were publicly revealed and reviled: their bodies, their sexuality, their wombs, the intimate sources of their personal dignity. At the same time, the script allowed for men—doctors, lawyers, judges, journalists, and myriad expert witnesses—to stand up, one by one, and reaffirm their prerogatives over women’s bodies and their lives.
These scenarios were enacted against a backdrop of postwar demands for the domestication of women after a generation of Depression and war and the economic and social responsibilities women had shouldered then outside of their homes. Cultural arbiters of every sort—teachers, clergymen, magazine editors, fashion designers, novelists, as well as obstetricians, psychiatrists, and other medical men—ordered women to go back home, to be proper wives and mothers, to be content. The incidence of abortion after the war provided distressing evidence that many women were resisting some parts—or all—of this prescription. The trials provided the opportunity to humiliate resisters, to drive the injunction home once again, and to underscore an important source of cultural as well as legal authority.
The politicians and the law enforcement officers who cancelled the old arrangement that had tolerated abortion as a “needed necessity” in town as long as nobody got hurt, and the courthouse men in charge of naming women’s guilt and setting their punishment, were together resisting the spectre of a community in which women could decide when and whether to associate sex and marriage, sex and maternity, marriage and maternity. In the 1950s, these men had the institutional power they required to resist this spectre by targeting individual women. But their leverage extended even farther because the displays in the morning paper after an abortion bust and the scenarios played out in the courtroom where abortion trials were heard carried powerful cultural messages to the general citizenry in the decades after World War II. These spectacles announced the danger and the just deserts that any woman associated with abortion could encounter. They also announced that the law was predicated on a willingness to place women in danger and also on a contempt for women’s self-determination. Anyone could see that enforcing anti-abortion laws involved the degradation of women. In this way, the mid-century prosecution of women associated with abortion embodied the message that every woman, whether or not she ever had or ever would climb up on the abortionist’s table, was endangered by the statutes that criminalized abortion.