Abortion and Birth Control for Married Women

At the same time that legislators granted narrow property protections to women, they also restricted the freedom of wives to control the size of their families through contraception and birth control. A dramatic decline in family size was one of the central demographic facts of the nineteenth-century United States. White female fertility declined during each decade of the century, falling from 7.04 to 3.56 children per family. By the beginning of the twentieth century the United States had one of the lowest fertility rates in the Western world.

Americans purposefully limited family size, through either birth control or abortion. The exact reasons for these actions (i.e., wives exercising greater control over the family by regulating pregnancy, the companionate family dictating greater attention to fewer children, husbands calculating shrewdly the costs of children, or all of these) are uncertain. Whatever the motivation behind their use, abortion and birth control raised the most controversial issues within domestic relations law. Developments followed a pattern similar to other areas of family law. Beginning in the middle of the century, state legislatures intervened with growing frequency, and the judiciary balked at accepting completely these incursions into previously private matters.

Birth Control Becomes an Obscenity

The reduction in family size coincided with greater social awareness and scientific understanding of birth control. Eighteenth-century couples engaged in age-old and largely inefficient methods, such as delayed marriage, breast-feeding, abstinence, and coitus interruptus. In the nineteenth century, however, birth control became associated with radical social reform, espoused most fully by Robert Dale Owen and John Humphrey Noyes. This connection contributed to the nineteenth-century middle-class perception that the practice was a mark of social degeneracy. At the same time, new methods of control appeared, the most popular of which was douching after intercourse. Charles Knowlton, a Massachusetts family physician and student of Owen's writings, described the method in the first treatise on medical jurisprudence, Fruits of Philosophy, published in 1832. By 1881 the book had sold more than 277,000 copies, and it was the most authoritative tract available in English on contraception.

Knowlton's graphic descriptions offended church and community leaders. Several towns in Massachusetts charged him with peddling obscene material, even though neither the common law nor statutes made the distribution of birth control material. illegal. Knowlton pleaded that he sought merely to improve public health, but the prosecution successfully charged that he had fomented obscenity. Only in his home

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town, after two hung juries, was he acquitted. Massachusetts in 1847 declared that publishing obscene material was illegal, although Fruits of Philosophy continued to circulate.

Explicit restrictions on the dissemination of birth control information first appeared in the 1870s as a moral purity movement took hold. Its leaders succeeded in linking birth control to obscenity in the atmosphere surrounding the family in the Victorian United States. They also received strong national support. Anthony Comstock, a failed New York City businessman, mobilized the reform effort. He denounced the few state laws dealing with obscenity as too weak and turned to the federal government. Along with Vice-President Henry Wilson and Supreme Court Justice William Strong, Comstock drafted the first national obscenity statute that, after little debate, became law on March 1, 1873.

The Comstock Act banned the circulation and importation of obscene materials through the mails. The list of banned items included goods designed, adapted, or intended "for preventing conception or producing abortion." ²⁵ It punished violators with a $5000 fine and a period of one to ten years at hard labor, or both. Vice-President Wilson rewarded Comstock's efforts by securing for him the office of special postal agent to enforce the act.

Several states promptly passed "little" Comstock acts, the harshest of which was in Connecticut. In 1879 Phineas T. Barnum, the great circus promoter, persuaded the legislature to make illegal the use of contraceptive materials. Barnum and his supporters recognized the enforcement problems raised by the law, but they expected a vigilante citizenry to report on the habits of neighbors and friends. The author Dio Lewis, who campaigned for the new regulations, insisted that "any friend of virtue, male or female, may quickly bring to justice these whelps of sin. It seems hard that decent men are not allowed to shoot them on sight as they would shoot a mad dog." ²⁶

Judges shared Comstock's enthusiasm for state regulation of morality. The Supreme Court in Ex Parte Jackson ( 1877) endorsed the Comstock Act and added to it the broad definition of obscenity developed by Lord Chief Justice Cockburn in the English case of Queen v. Hicklin ( 1868). Cockburn held that "the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort might fall." ²⁷ Justice Stephen J. Field's opinion in Jackson connected these sentiments to an active role for the state in the maintenance of moral authority. "[T]he object of Congress," Field wrote in explaining passage of the Comstock Act, "[had] not been to interfere with the freedom of the press, or with any other rights of the people; but to refuse its facilities for the distribution of matter deemed injurious to the public morals." ²⁸

Comstock personified the excesses that flowed from the Victorian quest for moral purity. Posing as an impoverished father, Comstock pleaded with Madame Restell, a wealthy operator of a New York City bordello close to St. Patrick's Cathedral, for birth control information. Hundreds of women yearly flocked to the clinic that Restell operated, seeking information about contraception and abortion. When Restell provided the information, Comstock arrested her, and facing imprisonment, the sixty- seven-year-old woman slit her own throat with a carving knife. Comstock was without remorse: "a bloody end to a bloody life." ²⁹

In the early twentieth century a new generation of reformers, led by Margaret

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Sanger, attacked the Comstock acts as unwarranted intrusions on the privacy of family decision making. Sanger pioneered the strategy, later adopted by the civil rights movement, of bringing test cases in order to stir public and professional support. Most state appellate courts countenanced legislative intervention, easing rather than overturning restrictions on information about and use of contraceptive materials. The New York Court of Appeals in 1918, for example, accepted that doctors could give birth control advice for the "cure and prevention of disease" of most any kind. ³⁰ Such decisions merely equated sexual rights with medical authority, and proponents of birth control such as Sanger were dismissed as radicals who threatened the security of the family and the nation.

Abortion

Abortion carried a far heavier moral and legal burden than did birth control. Colonial women had relied on it, along with infanticide, to rid themselves of the offspring of rape or seduction. Abortion carried no legal penalties under the common law so long as it was performed before "quickening," the period at about four or five months when the fetus began to move in the womb. The term originated during the Middle Ages with Thomas Aquinas, who concluded that movement in the womb indicated that a soul had entered it.

The justices of the Supreme Judicial Court of Massachusetts in 1812 first plumbed the legal depths of the issue. Commonwealth v. Bangs involved the fate of Isaiah Bangs who beat and administered a drug to his pregnant lover in an attempt to prevent the birth of their bastard child. The court held that Bangs had not acted illegally because the state failed to produce evidence that the fetus had quickened. Other jurisdictions followed the Bangs decision, giving the quickening doctrine a firm hold in the common law.

Legislatures gave statutory authority to the quickening doctrine. Connecticut in 1821 enacted the first abortion statute, incorporating the common law principle that a crime could only be ascertained if quickening had occurred. The act was directed against abortionists and not against the women on whom it was performed. A mother, in short, could not be her own abortionist, even though, unlike other sex crimes (incest and rape), her cooperation was almost always given. Other state legislatures through the 1830s and 1840s followed the quickening rule, even at a time when the English were doing away with it by parliamentary act. A few states, most notably New York in 1828, also recognized that an abortion might be legal after quickening if performed "to preserve the life of [the] woman" upon the advice of two physicians. ³¹

Abortions increased significantly during the 1850s and 1860s, rising from approximately one in every twenty-five to thirty live births to one in every five or six births by the 1860s. The surge in abortion seems to have been concentrated among middle-class white women, and their behavior drew increasing condemnation from religious leaders. A Boston minister, for example, described abortion as nothing more than "fashionable murder." ³²

The medical profession had the greatest influence in redirecting courts and legislatures toward an increasingly antiabortion position. The American Medical Association, founded in 1847, made an end to abortion one of its chief tasks, and its leaders viewed abortion law reform as a means by which the profession could enhance its influence.

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State legislatures responded to these demands in various ways, but the general direction was toward more comprehensive acts that imposed stiffer penalties. Massachusetts in 1845 passed the first separate abortion statute, but as late as 1860 thirteen states had no provision in their laws making abortion a crime, and those that did continued to rely on the quickening rule.

By the 1880s, however, medical and religious leaders swung legal authority decisively against abortion. They did so by invoking the states' police powers to make abortion a criminal act against public health and safety, a plausible enough position because abortion was a risky procedure that subjected women to death and sterility from hemorrhage and infection. The antiabortion statutes of the late nineteenth century, like the little Comstock acts and measures to regulate the industrial marketplace, were further evidence of the expansion of legislative authority into previously private matters.

Abortion became a crime in most states and the quickening doctrine lost much of its vitality. The New York legislature in 1881, for example, made prequickening abortion a criminal act, but it provided lesser penalties for the destruction of an unanimated fetus. The New York law, like statutes in California, Minnesota, Indiana, and the territory of Arizona, also subjected women seeking abortions to criminal penalties.

Abortion statutes limited the discretionary rights of women over their bodies, as a matter of both moral concern and public health. Male legislatures had made control of the woman's womb a matter for public concern and determination. The law's impact was certainly felt among married women, who turned by the end of the century to contraception rather than abortion as the principal means of birth control. The practice continued to flourish in the early twentieth-century United States, even though it was a criminal act in most states. Frederick J. Taussig, a physician and opponent of abortion, concluded that in 1910 as many as 80,000 abortions were committed each year and that only a very small percentage of those who administered them were ever convicted.

Children and Adoption

The social and legal status of children also changed in the nineteenth-century republican family. In premodern society, children were rarely differentiated from adults; they were simply smaller versions. In the modern era, childhood became a recognizable stage of human development; children were innocent, delicate, and malleable human beings with a psychology and emotion all their own. The companionate marriage and the inward-looking quality of the family accentuated these qualities, making children individuals with an identity removed, but not separate, from their parents.

The economic importance of children changed as well, although the extent of that transformation depended on the child's social class position. By the mid-nineteenth century, the conceptualization of the "economically worthless child" had been in large part developed among the U.S. urban middle class. ³³ Concern shifted to children's education as the determinant of future marketplace worth. Far from relying on his child as old-age insurance, the middle-class father began insuring his own life and setting up other financial arrangements such as trusts and endowments, to protect the unproductive child. However, the economic value of the working-class child increased rather than decreased in the nineteenth century. Rapid industrialization after the 1860s

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introduced new occupations for poor children, and according to the 1870 census about one of every eight children was employed. Only by about 1930 did children of the working class join their middle-class counterparts in a new nonproductive world of childhood.

State encroachment on the once exclusive power of parents over their children rested on the English common law doctrine of parens patriae. It meant that the judiciary was empowered to intervene to protect the child's property from waste by parents or guardians. Courts in the United States expanded this doctrine in several ways, extending greater protection, for example, to children in custody proceedings. The concept of protecting a public trust was also embedded in the doctrine, and state legislatures relied on it and the police powers to justify their intervention. They were encouraged to act by mid- and late-nineteenth-century educators, physicians, and reformers, all bent on saving children from themselves and their parents. Legislators, for example, began to treat youth as a separate category. Except in the South, legislatures passed compulsory school attendance laws. They provided, by the end of the century, special juvenile courts, and they limited the nuptial freedom of young people by raising the marriage age.

The economic interests of the middle class figured in another way. Given the large number of middle-class property holders, the establishment of a child's legitimate parents and the passage of wealth from generation to generation were vital economic concerns. Nineteenth-century family law in the United States provided clarity in both areas.

Bastards in the English common law had been filius nullius. This term meant that the child was the heir of no one and that he or she had no claim on their parents' estate. First by judicial decision and then by legislation, U.S. lawmakers softened the harsh English doctrine. Unwed mothers and their illegitimate children gained reciprocal rights of custody and inheritance, although only Arizona and North Dakota declared all children the legitimate offspring of their natural parents and thus entitled to support and education as if they had been born in legal wedlock. Far more important was the growing role of social workers and welfare bureaucrats at the beginning of the twentieth century, a development pioneered by Minnesota in 1917 when it established a state board to safeguard the interests of illegitimate children.

Adoption was a more far-reaching innovation in the domestic relations law of the United States. In the postrevolutionary republican family, adoption was handled privately, and those parents interested in securing the legal rights of their new children did so by private legislative acts. Courts, however, also began to recognize that adopted children had limited rights to parental property. By midcentury, legislatures replaced these private arrangements with general statutes that sketched the legal obligations owed by parents to their adopted children. Alabama in 1850 passed the first measure, followed the next year by the more famous Massachusetts statute. By the beginning of the twentieth century an elaborate bureaucratic network had emerged, partly to deal with illegitimate children, that established guidelines covering the fitness of would-be parents. The new laws cut both ways, however; children taken from their natural parents could be removed by the state to a "better" home, thus severing by state action what had been at the beginning of the century the most intimate relationship. Children were separate, if naturally dependent, individuals whose needs and interests public officials could best protect.

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Date: 2015-01-29; view: 802