7

A Criminal Practice

She did most of it for nothing ’cuz working-class women needed it. If they could, they paid. If not, not.

Lew Levy, member, Industrial Workers of the World

No one knows when Marie Equi decided to break the law as part of her general medical practice. On the surface, there was little reason to suspect that hers was different from those of other physicians. She maintained her office in respectable downtown buildings. She participated in meetings of the local medical societies, and she developed generally good relations with colleagues. By all appearances, she was a member in good standing with the local medical establishment, except that, at some point during her first ten years practicing in Portland, she started providing abortions.1 She joined a band of licensed physicians who risked prosecution and loss of their licenses, or, more likely, damage to their reputations, to help women end their pregnancies.

In the latter half of the nineteenth century and the early decades of the twentieth, abortion became an increasingly public concern that entangled physicians, the courts, the clergy, and politicians in a thicket of moral, legal, and economic dilemmas. The complexities began decades earlier when the American Medical Association (AMA) collaborated with government and civic authorities to outlaw abortion. The AMA spoke for regular physicians rather than practitioners of alternative healing, and it sought to enhance the status, professional domain, and financial well-being of its members at a time when medical science offered few diagnostic and clinical tools. A primary strategy for the association was to eliminate the competition of midwives who had assisted women with childbirth, including abortion, for as long as anyone could remember. The AMA worked state by state to outlaw abortion to drive midwives from medical care and to establish regular doctors as the sole source of medical care.²

The AMA was not alone in seeking to stigmatize abortion and punish providers. Civic boosters, business interests, and politicians readily joined the efforts to regulate morality. Many figured that well-ordered, proper communities attracted more settlers, commerce, and investments. Church leaders, in turn, supported restrictions purported to bolster moral behavior. The campaign drew on the fear of many Americans that immigrant births, combined with access to abortion, would overwhelm the declining Anglo-Saxon birthrate. The AMA’s efforts achieved remarkable success. By 1900, “virtually every jurisdiction” in the United States had banned abortion. But the laws codified new definitions of criminal abortion that complicated enforcement and ultimately helped physicians like Equi provide her abortion services.3

One of the most contentious aspects of the abortion bans was confusion and disagreement about when life began. Traditional beliefs asserted that the moment arrived once a woman detected a quickening or movement of the fetus—generally between the fourth and sixth month of pregnancy. Before quickening occurred, women relied on midwives to help remove what they considered a blockage to their menstrual cycle. They undertook these procedures as straightforward interventions that held little moral or legal weight, and they did so without interference by the state. The new laws, however, prohibited abortive acts at every stage of pregnancy, even before quickening. Yet many women and their doctors continued to endorse the traditional beliefs, and their views often complicated abortion prosecutions.⁴

Another stumbling block for prosecutors lay embedded in many of the abortion bans. A provision required the state to prove that a practitioner intended to end the life of a child. In the private setting of a patient’s home or a practitioner’s office, only the participants knew the pregnant woman’s circumstances, the nature of her request, and the practitioner’s response. If challenged by law officers after an abortion occurred—and especially if the woman died during the procedure—providers could claim the patient presented conditions unrelated to pregnancy.⁵

Many of the state bans included what became known in the legal arena as the therapeutic exception, an allowance for the practitioner to assist with an abortion if the woman’s life was threatened. The therapeutic exception was a reasonable, well-intentioned, and potentially life-saving option, but it created a “legal loophole,” in the words of one historian, for abortions to proceed without the danger of death. Doctors might invoke the therapeutic exception to justify an abortion because they believed women ought to control their own reproduction. Or they might invoke physical, psychological, or even financial difficulties that their patients presented. For example, a physician might decide that pregnancy resulting from rape merited an abortion or that an additional birth might exacerbate the dire financial straits of a family. Practitioners might also interpret the therapeutic exception loosely enough to end a pregnancy as a favor to friends and business associates or to gain referrals when no risk to health was apparent.6

These uncertainties with law and medicine prevailed when Equi established her medical practice in Portland in 1905. Oregon’s abortion ban had held sway for over fifty years by then, starting in 1854 when the territorial legislature followed the lead of twenty-one other states and territories and criminalized abortion. Ten years later (and after statehood) Oregon legislators revised the law to reflect more modern scientific understanding. They removed the quickening doctrine and added the therapeutic exception. They declared intent to do harm a necessary condition of guilt, and they specifically referred to a child—rather than a fetus—although the legal definition of when life began remained unresolved. The destruction of a child became a manslaughter offense, and the punishment for harming the child or the mother was set at one to fifteen years in prison. Anyone who procured an abortion could be held liable, but the pregnant woman was not.⁷

During these early decades when abortion was a crime, women who approached physicians for an abortion usually received one of three responses. A small number of doctors honored the requests and performed the procedure without a fuss. Many more physicians refused any help whatsoever. One of these—a doctor from Walla Walla, Washington—bemoaned the choices women made. He wrote to the journal Northwest Medicine that he advised single, pregnant women to get married, to take refuge in a foundling asylum if necessary, or to abide by their wedding vows if married. He was appalled to learn from a survey that only twenty-one of ninety-seven of his patients did as they were told. Perhaps the largest number of doctors referred patients to colleagues whom they trusted for their expertise and discretion.⁸

Women unable to afford physicians’ fees sought help from unlicensed, entrepreneurial practitioners who operated at maternity hospitals or menstrual clinics. There they might receive competent care, but the more commercial nature of the facility increased women’s risks of exposure and damage to their reputations. The poor and most disadvantaged women often relied on hack operators in back rooms along Portland’s waterfront or in the North End district. Or they might resort to instruments, such as rubber catheters, to induce abortions themselves. When hope faded and shame soared, the most distressed turned to suicide.⁹

Laws seldom have much impact without enforcement, but authorities in Portland waited nearly twenty years before taking the city’s first abortion case to court. In November 1873 the Oregonian reported the indictment of C. G. Glass for manslaughter following the death of a nineteen-year-old single woman, Mary E. Hardman, after an abortion performed the previous month. The conduct and outcome of the case and of the ones to follow helped establish the perception of risk for doctors like Equi, who later chose to violate the law.10

Glass advertised his practice as “The Eclectic Dispensary” for treatment of “chronic and private diseases” of men and women. At his downtown office, he served young men who had “weakened and injured their constitutions by secret habits” and women who were “dragging out a life of misery” due to “diseases peculiar to their sex.” He also promoted the sale of Female Regulatory Pills. His services and transactions represented the kind of alternative operation that the local medical society wanted to banish from the city.¹¹

In the ensuing trial, Glass testified that Hardman was already several months pregnant when he first examined her, but he found that she was “carrying a dead child.” He asserted that she had admitted to earlier seeking assistance of a midwife and to ingesting oil of tansy, a plant believed to induce abortions. He gave the ill woman lodging—after accepting the considerable sum of $250 for his services—but she died soon thereafter, he said, of bilious intermittent fever. His diagnosis was contested by two regular physicians who believed the woman had succumbed due to inflammation and hemorrhage associated with an abortion. After a three-day trial in the Multnomah County Circuit Court, the jury retreated to consider Glass’s intent, the viability of Hardman’s pregnancy, and the cause of death. After two-and-a-half hours of deliberation, the jury found Glass guilty, and the judge sentenced him to five years in the state penitentiary. Portland’s first abortion trial ended with a conviction, but the outcome proved more an exception than the rule for prosecutions in the decades ahead.¹²

By the time Equi obtained her medical license in 1903, only three practitioners had been convicted of providing abortions. Prosecutors found that insufficient evidence peculiar to abortion charges and the ambiguities of the abortion law made convictions difficult to obtain. On one occasion, in 1899, the therapeutic exception came into play when a doctor testified that his patient had so badly injured herself in an attempted abortion that he had to perform the operation to save her life. He was found guilty in a first trial, but the judge permitted a second trial only to have the charges withdrawn by the woman. The few guilty verdicts during the thirty years could not have deterred many providers, and newly licensed physicians like Equi might easily have decided that the risks were tolerable compared to the desperation of their patients.13

Equi started her practice in Portland in 1905, however, just as a surge in Progressive Era fervor for social reform and control triggered a spike in abortion prosecutions with nine trials undertaken within three years. She had thrust herself into the thick of the Progressive movement in common cause with other reformers, but she could not abide the restrictions on abortion that her colleagues now championed. Many believed easy access to abortion threatened the social order by alleviating unintended consequences of premarital sex and by separating intercourse from reproduction. Their concerns were exacerbated in April 1907 when Portland police arrested Dr. Charles Herbert T. Atwood on charges of an illegal procedure conducted on a sixteen-year-old woman. The Oregonian described the arrest as “the first of a crusade” against physicians who performed criminal operations.”¹⁴

Atwood was an unremarkable fifty-three-year-old married man with three adult children who had settled in Portland’s Woodstock district a few years earlier. He practiced from offices in the downtown Lewis Building on Fourth Street. “Dr. Atwood, female disease cases, private hospital” one of his newspaper notices read. The advertisement attracted Willard B. Holdiman, a forty-year-old married man with two children who impregnated Hattie Fee, the daughter of his housekeeper. Holdiman arranged for Atwood to perform an abortion on Fee. When she suffered complications, she sought help from the Travelers’ Aid Society, a Progressive Era organization dedicated to diverting young women from moral threats in the city. Lola G. Baldwin, director of the agency, would later become the nation’s first policewoman. Baldwin prepared the charges against Holdiman for statutory rape and against Atwood for abortion.¹⁵

Onlookers packed the courtroom of Judge Calvin Gantenbein of the Multnomah County Circuit Court the first day of Atwood’s trial. The city’s leading attorneys and physicians jockeyed for bench space, and contingents from the Salvation Army, Travelers’ Aid, and the Boys and Girls Society stood where they could. From the start, the trial exposed the difficulty of obtaining a conviction. Atwood denied any criminal intent, and he claimed to have administered only legal medicines. He then declared that Fee was not pregnant when she visited him. He sowed further doubt when he questioned why Fee’s mother had not supported the charges, although the woman had reason to be hesitant to testify against Holdiman, her employer. Atwood’s nineteen-year-old office assistant testified that she had seen nothing unprofessional during Fee’s visit. The prosecution’s case relied on Fee’s testimony alone. The judge cleared the courtroom before she “sobbed out her story,” according to a newspaper report, while Atwood shielded his eyes with his hand. Fee described her sickness and distress after the operation, but her pitiful tale did not resolve questions about Atwood’s intent. The jurors failed to reach a verdict, and the judge acknowledged the “perplexing issues” in the case before he dismissed them. The district attorney secured a retrial date, but the case was ultimately dismissed once both he and the judge decided Oregon’s laws were insufficient to prove manslaughter.16

Spurred by the Atwood case, Portland’s medical society leaders vowed to identify and prosecute “the many able but unscrupulous physicians” who broke the law and disgraced the profession. Dr. Alan Welch Smith, secretary for the society, complained that a clique of doctors dared to advertise their “unholy vocation” and then boasted how much money they pocketed.

The Oregonian reported that “legitimate physicians” had known for some time that at least a dozen of their colleagues performed abortions, yet few rank and file doctors chose to report the suspects. Many doctors possessed the surgical skills to end pregnancies without complications, and they protected the clinical prerogatives they felt were integral to the practice of medicine.

Doctors also coped with real financial concerns. Many served families whose business they wanted to retain, even if it meant performing an abortion or referring their patient to a colleague who was more willing to oblige. In doing so, they assisted and protected their middle-class and wealthier patients who could afford their services.¹⁷

Portland’s antiabortion campaign was off to an inauspicious start. If anything, Atwood’s trial broadcast the prevalence of abortions while the dismissal exposed the limits of the law. Hattie Fee, her family, and, presumably, the wife and children of the alleged rapist had suffered the most during the juggernaut of investigations, prosecution, and newspaper exposure that laid bare their lives and damaged their reputations.¹⁸

An especially egregious incident the following year, in 1908, stirred Portland’s Progressive establishment further. Mayor Harry Lane and the city’s board of health had recently elected Dr. Esther Pohl (later Pohl Lovejoy), a prominent suffragist, as the new city health officer to implement public health reforms critical to the mayor’s Progressive agenda. In February Pohl reported to the board of health that Golda W. Rowland, a twenty-five-year-old schoolteacher from Washington State, had died from an abortion performed at a suspect establishment, the X-Radium Institute, in downtown Portland. The odd name of the facility apparently reflected the public’s interest in the use of X-ray technology in American hospitals and the relatively recent discovery of radium. According to newspaper reports, Ernest Heymans, the proprietor of the institute, forged the signature of a Portland physician on Rowland’s death certificate. The doctor denied the claim, and the scandal devolved into countercharges and further accounts of questionable proceedings. The county coroner apparently had neglected his duty to report criminal activity in an effort to protect the family’s name, and a consulting physician had falsely listed endocarditis as the cause of death. The disclosures disturbed Portlanders, and there were more to come.19

Dr. William Eisen, a physician who had worked at the institute, claimed in a newspaper article that “infants, prematurely born” had been “incinerated in a furnace,” and he indicated that other physicians performed abortions at the facility. The disclosures prompted health officer Pohl to lament, “Think of a poor, unfortunate girl, dying among a crowd of grafters, such as Heymans and his assistants.” She believed such crimes were numerous in the city and were easily concealed. The same day that Pohl reported the incident, Heymans sold his interest in the clinic and fled the city. One newspaper suggested that local physicians had helped him elude the police to prevent disclosure of their identities. Four days later the police closed the institute.²⁰

The moral implications of the case prompted ministers and priests to take to their pulpits. J. Whitcomb Brougher, the pastor of Portland’s First Baptist Church, spoke of the Rowland “murder” before an overflow audience. “The case in question is ’specially startling only in the fact that it has been made public,” he said. He deplored that many women felt driven to death rather than endure the disgrace of their condition, and he exhorted Portlanders to rid the city of abortion providers, who he called a “generation of vipers.” Not all clergy were as outspoken. A representative of the Roman Catholic Archdiocese advised a concerned committee that Archbishop Alexander Christie would not permit his priests to speak about the matter. It was the policy of the church, he said, to conduct their endeavors quietly.²¹

Once again, a conviction eluded the authorities, and John Manning, the Multnomah County District Attorney, denied responsibility for the outcome. “I have been through the courts many times with these cases and have never been able to score a conviction, much as the courts and I have tried,” he told one newspaper. He complained that Oregon had a statute against manslaughter, not abortion. “But manslaughter is the taking of life. Life must be present before it can be destroyed. In nearly every case of abortion there is no taking of life, according to the legal and medical authorities.”22

In the speeches, sermons, and newspaper reports during these high-profile cases, abortion was invariably described as a uniformly dangerous procedure provided by reprobates and sought mostly by single women who had strayed or had been abused. The various officials assumed that the public shared their sentiments, but private talk among women, with spouses or lovers, and between doctors and patients dealt with everyday realities in which abortion was understood to be a usually safe operation performed by licensed and skilled physicians, midwives, or by women themselves. They knew that married women obtained abortions as frequently as single women and that unwanted pregnancies were less associated with “immoral” behavior than claimed. The discrepancy between public pronouncements and these quiet confidences obscured a real understanding of abortion and of women’s demand for it.²³

By 1915 the surge of Progressive Era abortion trials had ended due to prosecutors’ and medical leaders’ waning interest, the emerging birth control debate, and the double scourges of World War I and the 1918 Influenza Pandemic. Overall Portland prosecutors achieved a 30 percent conviction rate for the twenty-seven abortion trials conducted between 1873 and 1920, a record similar to that of other cities. The small number of trials and even fewer convictions proved to be little deterrence for either women seeking abortions or to providers helping them. Most doctors, in fact, enabled the practice of abortion, directly or indirectly, by invoking the therapeutic exception, referring patients to willing providers, offering medical care following abortions, or by not reporting colleagues who performed abortions. For these reasons, women in the early 1900s in Portland obtained an estimated six thousand or more abortions annually from a dozen or more practitioners. Yet the illegality, possible investigations, and threat of public humiliation hovered over most women who sought to make their own reproductive decisions.²⁴

Equi never appeared in the Oregonian for her abortion work, and no records suggest she was prosecuted for helping end pregnancies. She was one of the skilled regular physicians who helped women with abortions without legal trouble for anyone involved. She maintained a general practice—not opting for abortion services only—and she adopted a holistic approach to women’s health that included access to birth control information. Similar to most other physicians, she did not leave accounts of her assistance with abortions, but her actions reflected her priorities. Several of Equi’s contemporaries attested to her distinction as the only Portland physician of her time known to incorporate abortion services into a larger commitment to women’s reproductive rights.25

Of the two dozen licensed physicians known to perform abortions in Portland, two were women well known to Equi. Maude Van Alstyne and Alys Bixby Griff were also graduates of the University of Oregon Medical Department, and both overlapped their time on campus with her. Van Alstyne established her practice in downtown Portland’s Broadway Building, a ten-story structure with a white pressed brick exterior that boasted an opulent, marble lobby with chandeliers. The location served her clients well. They could as easily be stopping at the clothing stores, drug store, or dentist offices inside. Van Alstyne, described by a colleague, as a “dour and aloof” woman, managed a small operation and apparently avoided any difficulties with the police.26

Alys Bixby Griff became Equi’s great friend and confidant. She was a dynamic and engaging woman whose personality and presence commanded attention wherever she went. Following a pattern familiar to other physicians who provided abortions, Griff focused at first on diseases of women, but ten years into her practice she shifted to full-time abortion work. The demand had become apparent with six to eight women at a time crowding her office, according to her assistant. With their experience, Van Alstyne and Griff could have confirmed that the procedure itself was relatively uncomplicated and safe when performed early in pregnancies by a skilled practitioner. They might also have oriented Equi to the practice and business of abortion.²⁷

Abortion could be a lucrative specialty depending on the practitioner’s ability and reputation. Fees were usually based on the progression of the pregnancy, often beginning at twenty-five dollars. Women paid more—sometimes considerably more—for late-term procedures that required additional time and posed greater risks of hemorrhage and infection. Jessie Laird Brodie, a Portland physician who started her practice in the mid-1920s, believed the abortions Equi performed were “D & C,” meaning dilation and curettage, the most common form of medical abortion and a standard gynecological procedure. Laird believed Equi provided the service in her office and that she lacked many anesthetics that were then available only at hospitals. Equi was thought to charge poor women fifteen to twenty dollars and rich women fifty dollars for the service.28

According to Equi’s contemporaries, she performed abortions for a wide range of clients—her regular patients, poor, working-class, and immigrant women, political activists, and the wealthy clients referred to her. Equi became cherished among politically radical men and women in the Pacific Northwest for her willingness to help with abortions. Lew Levy, a radical comrade, extolled her work, recalling, “She did most of it for nothing . . . ’cuz working-class women needed it.” And, he added, “If they could, they paid, if not, not.”²⁹ The labor activist and journalist Julia Ruuttila thought Equi performed abortions with the best of intentions. “She believed that women should have the right of choice, and should not be forced to bear a child . . . if they didn’t want that child or couldn’t take care of it.”³⁰

Another confidant, Margaret D., a woman who Equi had delivered as a newborn and who later became her nurse, recalled that Equi told her that many Portland doctors referred their clients for abortions because they trusted her. She also recalled Equi’s quips. When Margaret and her girlfriends visited Equi’s practice in the 1920s, she said, “We’d stop in her office and she’d always slip us a couple of dollars and she’d tell us, ‘Now if you girls get in trouble, you come to me.’”³¹

Equi developed a reputation for her abortion work that lingered even after she closed her practice. Dr. Jessie Laird Brodie recalled that women doctors of her day—starting in the 1920s—were often stigmatized by male colleagues. “The main problem we had was that if you were a woman physician and lived in this area, they’d say you did abortions like Marie Equi.” She added, “It seemed to put you under suspicion right away.” Brodie may have been speaking more for herself, but she believed most doctors were unwilling to risk their licenses or reputations by agreeing to help end pregnancies. The perception of illegal procedures was enough in itself, she believed, to damage a doctor’s livelihood and standing in the community. “No legitimate doctor felt he could do it, but then a number discarded that protection and went ahead and did abortions,” Brodie said. “They felt so strongly about it, and I think Marie Equi was one of that type.”32

Equi apparently negotiated the abortion controversy without undue concern. She bucked the demands of medical leaders, Progressive stalwarts, prosecutors, and the clergy and focused instead on the needs of her patients. She was well accustomed to the disapproval of others for her willingness to speak her mind, for her lesbianism, and as a result of her political activism. She seldom met the expectations for proper female or professional behavior, and she brushed aside directives about what clinical services to provide her patients. She lived as an outsider herself and, as a result, perhaps had more empathy for women held morally and sexually irresponsible for seeking abortions. She operated as a physician of conscience, a description employed by historian Carol Joffe for abortion providers who respected their patients’ interests above all else.³³

Equi never let disapproval for her abortion work keep her from actively participating in the business of the local medical society, and she kept her membership active throughout her career. In 1909 she and her colleagues rallied around a breakthrough discovery that saved lives and shaped the future of medical research. It started that fall in the German laboratory of Dr. Paul Ehrlich. His team of bacteriologists discovered an arsenic compound, number 606, which effectively treated and sometimes cured syphilis. The scientists declared number 606 a magic bullet to target a scourge of mankind and, by 1910, it was on the market as Salvarsan—a remarkably quick course from the laboratory to clinical use. The scientific rationale that led to the discovery of Salvarsan helped create the new field of chemotherapy, and it soon became the most widely prescribed drug in the world. Physicians in the Pacific Northwest obtained Salvarsan soon after its release, and reports of clinical outcomes filled regional medical journals. Equi administered Salvarsan to her patients, and she reported her findings at a meeting of the medical society. She reported injecting the drug intramuscularly with good results, and she strongly advised “bed treatment” as well.³⁴

Most physicians steered clear of the newspapers, believing exposure would diminish their stature with the public. Equi believed the opposite, and she readily provided good copy to advance a cause or her own interests. In the midst of controversies she appeared in the newspapers more often than most, if not all, other doctors in the Pacific Northwest. In 1911 alone, Equi received several column inches when she rattled one of Portland’s social welfare institutions with charges of mismanagement and dangerous disregard for those in its care. She and a friend, Dr. Mary MacLachlan, had been rebuffed when they tried to assist an eighteen-year-old unmarried woman who had just given birth to a child she had no means of supporting. They took the infant to Portland’s Baby Home, a private outfit that received state funding and donations from many of Portland’s elite families. The director of the home refused to accept the infant without formal proof of relinquishment by the mother accompanied by payment in advance for three months care. Equi assured the director that the mother had indeed given the child over to her care, but she bristled at the notion of prepayment, saying it was out of the question and an affront to decency.35

Equi took her objections to the Medical Club of Portland, the local association of women physicians, which promptly endorsed her position. The Oregonian soon carried the story with an account by Equi of the many problems at the institution—the failure to isolate infants with infectious diseases, the lack of trained staff, and insufficient medical care overall. The previous September, City Health Officer Dr. C. H. Wheeler concluded that four babies had died within one week due to improper feeding at the Baby Home. Other doctors had complained among themselves about the facility, but no other private practice physicians had come forward publicly until Equi and MacLachlan spoke out. The Baby Home requested and won exoneration from the charges by the local juvenile court once the mother involved provided a formal release for her infant.³⁶

On another occasion Equi’s reputation as an outsider led to an association with a cross-dresser arrested in a “white slavery” incident. In September 1912, Portland police arrested twenty-eight-year-old Harry Allen of Seattle for transporting a woman across state lines for immoral purposes. Equi was reported to have visited Allen in jail. During the police interrogation, Allen claimed he was innocent, and that he was, in fact, a woman whose birth name was Nan Pickerell. He also declared that he was “married” to his female companion, who had willingly traveled to Oregon with him.³⁷

Although western newspapers occasionally carried reports of cross-dressing men and women, the police and the public were uncertain what to make of Allen. Was he a man as he presented himself, a woman who wanted to dress as a man, a woman who refused to wear feminine attire, or a woman forced by circumstances to seek the better paying jobs reserved for men? Few people were conversant with the psychological nuances of cross-dressing and the subtleties of an individual’s gender and sexuality identification. At the time of his arrest, Allen explained that he had “always wanted to be one of the boys” and had dressed in men’s clothing for the last dozen years. He described having a “boyish manner” as a child that remained and that his current “long stride and basso voice” were now natural. Although Portland Police suspected Allen of using a “disguise” for criminal purposes, the “white slavery” charge was dropped once his sex was discovered.38

The Harry Allen affair prompted Portlanders to consider the phenomenon of cross-dressing, but they could treat it as a curiosity far removed from their lives. Another year would pass before the world of sexual outsiders intruded too closely to dismiss. For many observers, Equi’s association with a cross-dresser may have placed her at greater distance from the rest of society, but she remained a doctor willing to treat an individual others avoided. As with abortion, she followed her own sense of medical and moral responsibilities.