Kristin Mackert, To Bear or Not to Bear: Abortion in Victorian America (1990)

At common law, it was a misdemeanor to abort a fetus after quickening--the moment when a pregnant first feels fetal movement. Abortions before quickening were legal. Between1820 and 1880, most states passed statutes criminalizing abortions. New York passed its first anti-abortion law in 1828, making it second degree manslaughter to abort a quick fetus and a misdemeanor to attempt to procure a miscarriage at any stage of pregnancy, unless it was necessary to save the woman's life. By 1840, 10 of the 26 then extant states had antiabortion laws of some sort.

Throughout the nineteenth century, the number of abortions increased. Abortionists' clientele shifted from mainly poor, single women in trouble to middle-class or wealthy married women seeking to limit the size of their families. Professional abortionists, such as New York's well known Madame Restell, marketed abortifacients and contraceptives as ways to limit family size and advertised their services in newspapers.

In the 1830s a vocal antiabortion movement began to have an impact on events in New York. Madame Restell was arrested in 1839 for selling abortifacients, but there was no trial. Two years later she was arrested again after Anna Maria Purdy made an affidavit claiming Restell sold her a harmful abortifacient and assisted in performing an abortion. The jury returned a guilty verdict, but the state Supreme Court granted a new trial because Purdy's depositions were inadmissible. With its star witness dead, New York dropped the indictment.

The prosecutorial difficulties may have spurred the New York legislature to action. In 1845, the state passed a new law reiterating the designation of abortion after quickening as manslaughter, declaring any abortion attempt to be a misdemeanor punishable by three to twelve months in prison and, for the first time, providing that women seeking abortions were also guilty of a misdemeanor. After the statute passed, abortionists briefly stopped advertising but continued their services. Restell was arrested again in 1847 on five counts of procuring an abortion. Due to conflicting testimony regarding the stage of development of the fetus, the court found her guilty of a misdemeanor and sentenced her to one year in prison.

Restell returned to practice in 1849. For a time the Civil War drew attention away from abortion. Nevertheless, opposition to the practice grew. Physicians saw abortion as unhealthy, immoral and an inappropriate way to limit family size. Led by Dr. Horatio Robinson Storer, and with the help of the American Medical Association, doctors launched an antiabortion campaign. Their goals were to sway public opinion and convince the legislature to pass and enforce stronger antiabortion laws. Some women saw abortion as a way of promoting involuntary motherhood and sexually exploiting women; they advocated abstinence as a means of birth control. Abortionists were condemned in the media and given longer sentences in court.

The sentiments against abortion gained steam with the emergence of Anthony Comstock in the early 1870s. With the help of the Young Men's Christian Association, he started a campaign against vice and secured the enactment of a federal law making it a crime to distribute "obscene" materials, including information on abortion and birth control by mail, and an 1873 New York statute prohibiting the distribution and possession of similar material. Forty states passed antiabortion laws between 1860 and 1880. In 1869 the New York legislature made it a misdemeanor to abort a fetus at any stage of development. In 1870, it made the abortion-related death of a fetus or woman a felony. Women who obtained abortions were also declared guilty of a felony. Madame Restell was arrested and indicted again in 1878 and killed herself the day of her trial. And so ended the life of a women viewed by many as the antithesis of the Victorian wife and mother.

 

Revised July 23, 2003 (MD)