Mauri Cummins Kassner, Obscenity and Abortion Legislation in Maryland in the Late Nineteenth and Early Twentieth Centuries (1984)

Maryland did not pass a state Comstock law, but it prohibited the advertising and trafficking of abortifacients and contraceptives through its obscenity legislation. An 1835 law prohibited the distribution of obscene or licentious articles, and an 1853 amendment prohibited their advertisement. Advertisements for abortifacients did not disappear after the 1853 enactment but became vaguer, referring only to "female irregularities." In the late 1860s, advertisements became more blatant again. The shift sparked public concern over the prevalence of obscene publications. The lack of prosecutions of providers of birth control information suggests that the law couldn't be enforced as long as contraceptives and abortifacients had legitimate medical purposes. The first law specifically dealing with birth control was not passed until 1953 and regulated the places in which contraceptives could be sold.

At common law abortion was only a crime after quickening, the first movement of the fetus felt by the mother. In the early 1800s the practice was common among single women. Between 1821 and 1841, 10 of 26 states passed abortion laws. Five states criminalized it only after quickening. The other five declared abortion illegal at any point during pregnancy. These statutes, however, were largely unenforceable. As a practical matter proof of the existence of a live fetus was thought impossible prior to quickening. During the 1840s, abortion became more visible as newspaper advertisements proliferated. The number of abortions skyrocketed, especially among middle and upper class married women who wished to limit the size of their families.

From the late 1700s on, the status of physicians was low as incompetent doctors and practitioners who were not trained in medical schools joined the profession. Doctors, barred from performing abortions by the Hippocratic oath, sought to restore their credibility by launching a crusade to outlaw the practice. In the late 1800s, with a push from lobbyists of the fledgling American Medical Association, many states adopted abortion laws that banned the procedure altogether.

Maryland was influenced by these national trends. Dr. Eli Henkle's election to the Maryland Senate and the formation of the Baltimore Medical Association brought about laws that more tightly regulated the practice of medicine. An 1867 law imposed strict licensing requirements to practice medicine and forbade doctors from performing abortions except when necessary to save the mother's life. The law was less strict than many in other states. It contained a therapeutic exception allowing doctors to treat women who were victims of botched abortions. In addition, pregnant women who sought or attempted abortions were not subject to prosecution.

Only 11 decisions under the Maryland statute are reported. In Hays v. State (1874), the court declined to apply the therapeutic exception to a midwife. It ruled that solicitation to take an abortifacient was not grounds for conviction in Lamb v. State (1887). Jones v. State (1889) held that if a solicitation was successful an indictment was tenable. Several cases dealt with dying declarations, relaxing evidentiary requirements to uphold convictions of abortionists. Two later cases, Larkins v. State (1932) and Adams v. State (1952) set standards that made it harder to convict. Perhaps these cases mirrored the beginning of significant changes in attitudes toward abortion. The intent requirement created a loophole and only indictments that were likely to succeed were brought. Indictments were brought under the abortion law before the turn of the century and under manslaughter or murder charges after, revealing that the state's greatest concern was with protecting the lives of women. The anti-abortion statute was repealed in 1968.

 

Revised July 23, 2003 (MD)