Bringing Down the Flowers: The Controversial History of Abortion

The Supreme Court will weigh just how easy it should be to obtain an abortion on Wednesday when they hear Whole Woman’s Health v. Hellerstedt, the most significant abortion case since 1992.

The question at the center of the case is not whether abortion is morally right or wrong, per se. It’s whether Texas has the right to place certain restrictions on abortion—specifically whether it can require abortion clinics to meet the same standards as a surgical centers and to only employ doctors who have hospital admitting privileges within 30 miles of the clinic. If these rules are allowed to go into effect, there would only be 10 abortion clinics left in Texas, a state that’s larger than the country of France. Already, about half the state’s 40 abortion providers have closed their doors.

Advocates of the restrictions say they help make abortion safer for women. But last year when I interviewed the lobbyists who helped write the rules, a group called the Americans United for Life, they suggested they would support limiting access to abortion because it is, at its core, a terrible practice.

The modern abortion debate can feel like trench warfare, with diametrically opposed camps and very few defectors. Surprisingly, though, even the history of abortion is contentious. It’s widely known that there was a legal crackdown on abortion in the U.S. in the 19th century, and clandestine abortions persisted until the practice was legalized with Roe v. Wade in 1973. But scholars don’t agree on whether, before the 1800s, abortion was relatively common and legally accepted, or whether it was considered a grave crime, when it happened at all.

This is no idle academic spat. English common law provides the basis for much of the legal precedent in the U.S. (and elsewhere in the former British empire.) More importantly, in his majority opinion in Roe v. Wade, Justice Harry Blackmun cited the historic acceptability of abortion. It is “doubtful that abortion was ever firmly established as a common law crime,” he wrote.

Carla Spivack, a scholar of the law and English literature at the Oklahoma City University School of Law, argues that dating back to the 14th century in England, many sources suggest abortion was not considered illegal before the point of “quickening,” or when the woman was able to feel the child move in her womb. This usually occurred at about four months, or 16 weeks of gestation. Even after quickening, abortion was typically judged a misdemeanor at most. Women who wanted to terminate their pregnancies used various herbs and tinctures, and the effects of these potions were well-known among midwives.

Meanwhile, a Villanova University law professor named Joseph Dellapenna claims the truth is just the opposite in almost every way. He says abortion was consistently criminalized in England since roughly 1200. According to him, prosecutions for abortion have been happening for centuries, usually out of concern for the unborn child. He’s laid out his thinking in a book and in several briefs in high-profile Supreme Court cases on abortion.

In a rebuttal to Dellapenna published in the William and Mary Journal of Women and the Law in 2007, Spivack argues that when abortion was prosecuted, it was mainly done as a way of either cracking down on illicit sex or punishing a man who injured a pregnant woman. (Dellapenna says many abortion attempts were, in fact, prosecuted as witchcraft.) Authorities at the time were more concerned about prostitutes and vagrancy than they were abortion, Spivack writes, and the state had little say in what happened between married couples. For example, in the aftermath of one abortion in 1742 in Connecticut, as explained by the historian Cornelia Hughes Dayton, there seemed to be just as much concern over the fornication that took place as there was about the destroyed fetus.

“This is why [Dellapenna] hates me,” Spivack said, perhaps only half-jokingly.

According to Spivack, the Anglo-Saxons, the people who inhabited Great Britain from the 5th century, believed that the soul entered the body during quickening. “The baby moves, and it displays an ability to be animated,” she said. “They thought that was what having a soul meant.”

And of course, medical thinking at the time was a bit more … imaginative. Bodies were thought to be ruled by humors, and Spivack argues that some miscarriages were considered a normal type of purging, not unlike bleeding. Midwifery manuals from the 17th century speculate that before quickening, it’s impossible to know whether the fetus is even human. “[M]onsters of all sorts [can] be formed in the womb,” wrote one such midwife. In addition to human children, women could also become pregnant with “false Moles,” or non-sentient lumps of flesh and veins. Quickening was the only way to know for sure if you were pregnant—and what with.

As further evidence, Spivack points to recipes for concoctions, made from things like ergot and savin, that would “bring down the flowers,” a euphemism for restoring menstruation. Sometimes, women would take the herbs if they were missing periods because of nutritional or other health issues. Other times, though, it was meant to cause a miscarriage.

Dellapenna argues, meanwhile, that herb-based abortions were tantamount to suicide. They worked by poisoning the fetus, but took down the mother, too. “Women are not fools!” he said. “They said, ‘I’ll wait till the baby is born.’” Thus infanticide, helped along by complicit midwives, became a much more endemic problem, in his view.

(Spivack says that to the extent infanticide happened, it was mainly a phenomenon among single women. One centuries-old law stated that a woman found alone with a dead baby should be presumed to have killed it.)

Leslie Reagan, a professor of history and women’s issues at the University of Illinois, takes Spivack’s side. Her book, When Abortion Was a Crime, came out in 1997. In a review for The Atlantic at the time, Katha Pollitt wrote that it dispels the notion that “widespread use of abortion [is] a modern innovation, the consequence of some aspect of contemporary life of which [opponents] disapprove (feminism, promiscuity, consumerism, Godlessness, permissiveness, individualism).”

Reagan says many women would dose themselves with abortifacients but stop once they reached quickening. In the 18th century, “there was even a term for it, ‘taking the trade,’” Reagan said in an interview. “Peddlers would go from town to town selling various herbs and powders that would induce a miscarriage.”

In England, abortion became criminalized in the early 1800s, and U.S. laws quickly followed. Again, according to Dellapenna, policymakers at the time were concerned about child murder.

Reagan and others, meanwhile, believe criminalization was driven by fears that wealthy, white women were having too many abortions, therefore depriving the country of badly needed people. During this time, Reagan said, “abortion” was chosen to represent any terminated pregnancy—even those before quickening.

The fear at the time was, “women are not doing their duty, and if they don’t bear the fruit of their loins, who is going to settle the great vast prairies?” she said.

* * *

So why does it matter what the Anglo-Saxons thought about fetuses? Any number of things from the past—witch-hunts, slavery—are thankfully no longer part of legal thinking. Why should we care about the history of abortion?

Spivack acknowledges that looking to the Anglo-Saxons might be digging too deep. But our modern theories of right and wrong come from many sources, and a big one is English common law. “The people who wrote about the law in 17th, 18th, 19th centuries—Matthew Hale, William Blackstone—we read them today,” she said. “If they say this, we have to take it seriously.”

For his part, Dellapenna acknowledges that if the Supreme Court justices take his view that abortion has not historically been smiled upon, and in turn leave abortion restrictions up to the states, abortion would be all but unattainable in some parts of the country.

“This would discriminate against poor women. This would be a problem,” he said. But the practical consequences are beyond his purview. “I’m just the guy who’s after the truth of the matter.”

What Happens When the Clinics Close?

At one point during the Whole Woman’s Health v. Hellerstedt oral arguments on Wednesday, Justice Stephen Breyer asked a question that strikes at the heart of the trade-off Texas women and doctors face.

“If you suddenly had at least 10,000 … women who have to travel 150 miles to get their abortions,” he said, “are there going to be more women or fewer women who die of complications?”

In other words, Texas can either have state-of-the-art, hospital-like abortion clinics that meet the strict requirements laid out in House Bill 2, the 2013 law that sparked the case, and have fewer of these clinics overall. Or, it can have a greater number of modest facilities—ones providers say are more than adequate—that are easily reachable by most.

The two sides of this case have not just two very different views of abortion, but also different takes on the existing abortion landscape in Texas. The briefs filed for the state suggest that abortion clinics are a lawless frontier in which reckless doctors operate on frightened women and dump them in hospital ERs if anything goes wrong. The plaintiffs, meanwhile, say abortion is already very safe—much safer than childbirth and any number of other procedures. They believe tales of botched abortions are overblown by pro-lifers as a propaganda tactic, that the requirements for their clinics have no medical purpose, and that the real intent of the law is to make abortion more difficult to access.

If HB2 is not struck down, all abortion clinics would have to meet the standards of ambulatory surgical centers. Abortion providers would be required to obtain admitting privileges at a hospital within 30 miles. Proponents say these measures are necessary to protect Texas women. A group of physicians who have experience treating women in rural settings, for example, wrote in a brief that many parts of Texas have either no ERs or no obstetricians. Having abortion providers serve as impromptu ER doctors, if something does go awry, helps ensure continuity of care for patients.

Another brief filed by a group of pro-life doctors points to inspections of Texas abortion facilities that show poor sterilization practices, including employees who were handling bodily fluids without gloves on. A group of 3,348 women gathered together by a conservative group called The Justice Foundation all said they had been “injured by abortion”—though it’s not clear where and when all of these injuries occurred. One woman named Cindy said she had four abortions between 1978 and 1980 in West Texas. After the second one, she experienced severe bleeding but didn’t call the hospital because her abortion provider told her not to, she said. With stricter rules for abortion clinics, Texas state authorities say, there would be fewer Cindys.

During Wednesday’s oral arguments, Justice Samuel Alito said some of the Texas regulations didn’t seem that onerous. Meaning, couldn’t the clinics comply with them if they really wanted to? “I was surprised by how many are completely innocuous,” he said, singling out one rule on doorway widths.

But arguments and evidence from the other side suggest that some of the so-called TRAP laws are not so harmless. Ten other states have admitting privileges requirements, and some two dozen have the ambulatory surgical rules in place.

Already, in Texas, the number of abortion clinics in Texas has shrank from the 40 it had before the law was enacted. If the law is upheld, abortion providers say just 10 clinics would remain. They would all be located in the state’s four largest metropolitan areas, with none west of San Antonio.

The Difficulty of Getting an Abortion in Texas


Ironically, one reason abortion providers have had trouble gaining admitting privileges is that abortion is too safe. Some hospitals require doctors to admit a certain number of patients in order to get admitting privileges. The cost to upgrade to the standards of a surgical center, meanwhile, ranges from $1.7 to $2.6 million.

More women would have to drive for hours, pay for a hotel and childcare so they can wait the mandatory 24 hours, and then drive back, missing out on hundreds of dollars in wages.

In a call with reporters, Amy Hagstrom Miller, the CEO of Whole Woman’s Health, said she heard from a working mother in Lubbock who “was eight weeks in, trying to figure out how she was going to drive 350 miles multiple times and pay for the procedure and take time off work.”

“After talking with her more than six times,” she said, “she was pushed into the second trimester, and inevitably she got far enough that she couldn’t get an abortion in Texas.”

The state’s abortion providers say some women are already waiting three weeks for an appointment, and the delay would only grow longer as more clinics went out of business. Remaining providers would have to increase their patient case-loads four-fold, the clinics say.

Waiting longer for an abortion increases the likelihood of complications. In their brief for the clinics’ side, a group of doctors and gynecologists write, “The mortality rate for abortions occurring prior to 13 weeks of gestation, the period during which most abortions are performed, is no more than 0.4 per 100,000. The mortality rate increases significantly, however, throughout the second trimester.” Studies have shown that the number of second-trimester abortions have risen in Texas since the law went into effect.

Justice Anthony Kennedy, widely considered to be the crucial deciding vote in the case, said during the arguments, “This law has increased the number of surgical procedures as opposed to medical procedures, and this may not be medically wise.”

If clinics become more sparse, some women will likely attempt to induce their own abortions. According to a pair of studies recently released by the Texas Policy Evaluation Project at the University of Texas, between 100,000 and 240,000 Texas women between the ages of 18 and 49 have already tried to end a pregnancy by themselves.

“We’ve had women who called us and said, ‘Can you tell us how to do my own abortion with medication in my cabinet or cleaning supplies I have under my sink?’” Hagstrom Miller said.

Some women in the western half of the state, where there are no abortion clinics, will inevitably travel to New Mexico. In an interview, one 19-year-old El Paso woman named Stephanie said she drove for 12 hours, round-trip, for an abortion in New Mexico when she was 17 weeks pregnant because she struggled to find enough money in time for her procedure. The only Texas clinic near her home would perform abortions only through 15 weeks of pregnancy, she said, and New Mexico clinics were more lenient. When her friends asked what happened, she told them she had a miscarriage. (The Atlantic found Stephanie through the West Fund, a Texas-based abortion fundraising group.)

When presented with the New Mexico option at the hearing, Justice Ruth Bader Ginsburg said it seemed counter to the spirit of the law. “Texas says, to protect our women, we need these things. But send them off to New Mexico … and that’s perfectly alright?”

Jaclyn Skurie contributed reporting to this article.

Why Gender Inequality Is More Acute for Women in the South

The gender pay gap is a worldwide problem, but women in some places have it worse than others. A new report from the Institute for Women’s Policy Research (IWPR) reveals that working women in the South suffer some of the harshest inequalities in the U.S., not only in terms of how much they are paid, but how they are treated in the workforce.

To compare the status of women across the nation, the report grades each state based on six categories: political participation, employment and earnings, work and family, poverty and opportunity, reproductive rights, and health and well-being. Not a single Southern state was given an overall grade higher than a C-. In fact, 10 out of the 14 Southern states received some form of a D grade, as shown in the chart below.


Best and Worst States in the South


While not all of the report’s findings are this bleak, many of them reveal startling realities about just how divisive the workplace is for women in the South. When it comes to political participation, for instance, only one Southern state—North Carolina—earned above a D grade. Meanwhile, the report concludes that it will take more than 200 years for West Virginia and South Carolina to achieve gender parity in their state legislatures—almost double the time it will take to close the global pay gap.

Where the Southern pay gap is concerned, the report shows that the average woman in the South lost out on $6,392 in 2014 due to wage inequality. When this number is added up for all women in the South, the loss amounts to a whopping $155.4 billion per year.

One silver lining to these troubling statistics is the fact that women in the South tend to have better access to affordable childcare than those in the rest of the country, according to the report. In fact, the IWPR’s childcare index places half of the Southern states among the top 10 states with the highest-quality and most-affordable childcare in the U.S. On the other hand, only one Southern state—Washington, D.C., which is not really a state at all—legally offers paid leave to its employees (the Accrued Sick and Safe Leave Act mandates paid sick days). This region-wide disparity not only places a disproportionate burden on mothers, but particularly on black Southern mothers, who in four out of five cases are the main breadwinners in their families.

CityLab


On a more positive note, the presence of so many working women in the South has resulted in a relatively high share of female-owned businesses. Nine out of the 14 Southern states surpass the national average for business ownership by women, the report says, with black women owning nearly 60 percent of all black-owned businesses there. And yet, black and Hispanic women in the South are still twice as likely to live in poverty as Southern women who are white or Asian/Pacific Islander.

“For every promising sign for women in the South, there are far too many concerning ones.”

Southern women fare a bit better in terms of reproductive rights. According to the report, 10 of the Southern states received a D or above in this category, and not one Southern state received an F. Still, the idea that a D is considered a “promising” grade points to a deeper problem of gender inequality in the South.

The report also shows that Southern women are more likely to to receive preventative care such as mammograms or HIV screening than women in other areas of the U.S. ​Sadly, these women are also more likely to die of heart disease or breast cancer, be diagnosed with diabetes or AIDS, or experience more days of poor mental health per month.

When it comes to the overall status of women in the South, the results are discouraging. “For every promising sign for women in the South, there are far too many concerning ones,” the IWPR President Heidi Hartmann said in a press release. The future is not hopeless, however. “Making sure women’s voices are heard at the ballot box and in the state house is central to improving women’s status in the South and beyond,” Hartmann added.

These realities of gender inequality are worth bearing in mind this Super Tuesday, as Southern states like Alabama, Arkansas, Georgia, Tennessee, Texas, and Virginia help to elect the future leader of our nation.


This article appears courtesy of CityLab.