The Likely Problems With Law Enforcement Under Dobbs
Problems with Abortion Law Enforcement
Now that the Supreme Court in Dobbs (2022) overturned Roe (1973), it behooves Christians to consider whether anti-abortion policy expressed in the form of criminal justice statutes actually work. A historical comparison helps: Before Roe, anti-abortion policy in a retributive criminal justice paradigm stopped abortions like Prohibition stopped alcohol. Namely, it did not. Instead, pre-Roe policy created gray and black markets, segmented women into a spectrum of more or less abortion access, and affected medicine and law enforcement in perverse ways. This is precisely what happens when an issue that is better suited to a public health and social welfare paradigm is forced into a criminal justice paradigm.
Between 1923 and 1967, Dr. Robert Douglas Spencer performed an estimated one hundred thousand or more abortions in his spotless clinic in the midst of coal country in Ashland, Pennsylvania. He charged virtually nothing. Reports exist of him charging rates as low as $10, $25, and $50.[1] Explaining why he offered these women who came to him seeking abortions, he said, “I could see their point of view.” How widespread were occurrences like this, and what patterns did they follow?
In the 1930s, says the Oxford Companion to United States History, licensed physicians performed about 800,000 abortions per year, despite pro-life laws in every state.[2] During the 1940s, medical advances—the use of penicillin, better use of anesthesia, and new surgical techniques for Caesarian sections—reduced maternal risk factors but also made abortions easier. The increase in abortions for psychiatric reasons—referring to the emotional health of the mother—increased rapidly. If a woman told her doctor she was considering suicide because of an unintended pregnancy, that counted as a psychiatric reason, as the doctor could only take her word for it.[3] In 1954, Dr. Alan Guttmacher admitted that “the truly legal abortions, in which the procedure is absolutely essential to preserve the mother’s life, are relatively few.”[4]
Doctors in hospitals were almost never prosecuted for the abortions they performed. The law allowed for abortion performed for “therapeutic purposes,” that is, to save the mother’s life. In practice, hospitals were given wide leeway to define what conditions threatened the health of the mother. One physician admitted, “After starting a little bleeding I’d tell her to go home and call me back within twenty-four hours to let me know if the bleeding continued. If it did, which I expected that it would, I would then admit her as a threatened abortion and complete the process in a legitimate way.”[5] Evacuating a miscarriage from the womb is identical with performing a surgical abortion, and that fact is a serious challenge for the intersection of law and medicine.
Despite Catholic doctors spearheading the formation of hospital committees to provide oversight, physicians regularly admitted that the practice of performing abortions in hospitals was “inequitable, inconsistent, and largely illegal.”[6] One survey of New York hospital practices in the 1950s concluded that in a five year period, 90 percent of all so-called “therapeutic” abortions were actually illegal.[7] Reports abound of sympathetic doctors performing a “dilation and curettage”: causing a small amount of uterine bleeding, telling the woman seeking an abortion to come back the next day, and providing an abortion on therapeutic grounds. This was a useful device for aborting the pregnancy for other, supposedly precautionary reasons. In one small hospital, reports show that 107 “diagnostic uterine curettages” were performed in one year; of those, 104 patients had been pregnant.[8] Concerning the 1950s and 1960s, the most realistic estimates range from 900,000 to 1.2 million per year.[9]
Surprisingly, then, just prior to Roe v. Wade in 1973, abortion law did not mean as much about the actual practice of abortion as one might think. Thirty states made abortion illegal in all cases without exception, sixteen states legalized abortion under ostensibly rare circumstances (rape, incest, threat to mother’s life), three states legalized abortions but only for state residents, and New York allowed abortions generally. Meanwhile, “wealthy citizens usually had access to safe abortions even in jurisdictions with draconian restrictions on abortion on the books.”[10] For example, prior to Roe, California law after 1967 stated that abortion was only legal when a mother’s health would be gravely impaired. If law indicated practice, one would think that California would have a low abortion rate. Yet California officials were known to be so flexible with medical terminology, and so sympathetic to women seeking abortion that they effectively “permitted abortion on demand.”[11] By 1973, California’s legal abortion rates were higher than those of states that had repealed all restrictions on abortion.
One reason for this startling gap between abortion law and abortion practice is the willingness of many actors to circumvent the law to protect abortionists they felt served them. Prior to Roe, while single women sought abortions too, the overwhelming majority of abortion requests were made by married women.[12] Especially when the women were white and middle- to upper-class, abortions were readily available. Pre-Roe policy created a vast gray market in abortion. In fact, the law enforcement agents themselves had a vested interest in not prosecuting cases, because they had either benefited themselves from abortion services, or believed, with the community, that abortionists “performed a useful service”:
“Anti-abortion advocates complained that “even the most outrageous abortionist” could not be convicted in a jury trial. One juror refused to convict a well-known abortionist because there was “nobody in Schuykill County that the doctor hasn’t helped.” Half the abortionists convicted in New York between 1925 and 1950 were sentenced only to probation. Dr. Milan Vuitch, a prominent physician-abortionist, was arrested sixteen times for openly running an abortion clinic in Washington, D.C., but never went to jail.”[13]
Since women did not consider themselves to be victims of a crime, law enforcement agents regularly found themselves lacking any witnesses and complainants. Recall the example of Dr. Robert Spencer in Ashland, Pennsylvania. As to why he was never prosecuted under criminal charges, Dr. Spencer’s widow explains:
“no one was out to get him because he was such a good doctor. Besides, he was benefiting the local economy. People were coming here from all over the United States. They spent money in the hotels and restaurants. The local merchants, no matter what their attitudes about abortion, knew a good thing when they saw it, and they weren’t about to kill the goose that laid the golden egg.”[14]
In fact, one man ran as a candidate for district attorney, promising to prosecute Dr. Spencer and shut down his business. He was crushed in the next election.[15]
Those who assess law enforcement of anti-abortion policy concede that it was not merely erratic, but unquestionably selective. The police pursued “the most unskilled practitioners rather than the most successful.”[16] The famous 1956 Time magazine story of an abortionist highlights how successful abortion physicians were rarely prosecuted. Time covered the story of a 72-year-old doctor in Akron, Ohio who was sentenced to 4 months in prison for performing abortions in his own clinic. He admitted to aborting two to three hundred abortions per year since 1934, totaling about 5,500 abortions. He had never previously been arrested, probably because he had never caused a woman’s fatality. That he was at the end of his career due to age was surely the reason he was prosecuted.
Wasn’t Some Anti-Abortion Policy Better Than None?
But was some anti-abortion policy better than none? If fetuses were saved from abortion, wasn’t it worth it? The number of abortions after Roe unquestionably went up. By how much, however, is highly contested, and other measures could have been more effective instead. Pro-life advocates argue that the number of abortions prior to Roe was low to give the appearance that abortions vastly increased after 1973. Pro-choice advocates, on the other hand, suggest that the pre-Roe number was already high, to give the impression that Roe did not cause that much of an increase. Discussion of the high and low ends of these estimates is not only meaningful in itself, but also raises observations related to the larger relationship between law and medicine.
At the high end of the estimates for the years just before Roe is 1.2 million, which is commonly cited. Some have expressed doubt that ob-gyns alone could have performed Around 1895, some doctors estimated that 2 million abortions occurred annually.[17] Dr. Mary Calderone, the medical director of Planned Parenthood, estimated in 1960 that 90 percent of all illegal abortions were done by licensed physicians, whereas Dr. Alan Guttmacher in 1967 estimated that percentage to be 80.[18] Those estimates, if accurate, certainly call into question how over a million abortions per year could be carried out by ob-gyns alone. However, if, in one year, a non-physician like Barnett the chiropractor could perform 1,000 abortions, and groups like “Jane” could do 2,000 – 4,000, it is not hard to imagine that the national abortion rate would lean towards the higher side. One report extrapolated from North Carolina data alone in 1967 and concluded that, nation-wide, 829,000 illegal or self-induced abortions occurred in that year alone.[19]
One study gives a lower estimate of 210,000 illegal abortions per year. Constitutional law scholar Mark Graber highlights two major methodological problems used to arrive at that number. The estimate comes from Centers for Disease Control (CDC) data from 1940 to 1972, reasoning from abortion fatalities to total abortions, which CDC officials admit represents “a minimum estimate.” The study also takes the number of women from New York City who died from illegal abortions to estimate the total number of abortions administered in New York City, then extrapolates that to the larger U.S. At that time, 94 percent of the women who died from illegal abortions in NYC were women of color. The study therefore underestimates the far greater access to abortion services – considered legal – that wealthy, white women had. Graber points out, “Nowhere do the authors explain why one would assume that black women in Harlem had access to anything remotely resembling the same quality abortion services as had white women who lived in such affluent suburbs as Scarsdale and Great Neck.”[20]
It is significant that the abortion rate, as reported by the CDC, has declined from significantly from 1973 to 2016. In 1973, the rate was 16.3 abortions per 1,000 women aged 15 to 44. By 2009, the rate had inched downward to just under 15.0. By 2016, the rate had fallen to 11.6. Although there is some debate about exactly why, the bulk of that decrease occurred from 2010 – 2016, the years that contraceptive care was offered through the Affordable Care Act. Contraceptive care is part of the argument that was made in Session 1 of the Abortion Policy series.
Ross Douthat, a Catholic columnist for the New York Times, acknowledges that in economically developed countries, gestational limits, a mix of waiting and counseling periods required of women seeking abortions, and social policies designed to make childrearing affordable do seem to bring down abortion rates.[21]
Before Roe and After Dobbs: The Experience of Poor, Minority, Underage, Disabled Women
One major problem therefore raised by the Dobbs decision is the vastly unequal treatment women will face based on race, class, connectedness, and ability/disability. Women with means can cross state lines if they live in an anti-abortion state. In the post-Dobbs era when Roe is no longer federal law, the pre-Roe landscape will surely return.
Inequality in Travel Costs
Health economists Joyce, Tan, and Zhang found that, just prior to Roe, women who were financially able traveled great distances to get an abortion.[22] After New York legalized abortion in 1970, including for out-of-state women, many women traveled there. Even after abortion became legally available in six states and Washington, DC in 1971, 84 percent of all known abortions occurring outside a woman’s home state took place in New York. “There was a plane for women who wanted abortions that went from Detroit to Buffalo,” said Joyce.[23] They conclude, “a reversal of Roe is unlikely to cause drastic increases in unintended childbearing, but it would likely have a significant impact on those with the least resources and wherewithal to adjust . . . we anticipate that the vast majority of women in states without legal abortion would access services in states where abortion remained accessible.”[24]
Inequality Even If You Don’t Travel
Women who were closer to abortion services, however, had different experiences accessing medical care. The available pre-Roe statistics for the experiences of black and Latino women, or rural women, compared with those of middle to upper class white women in well-resourced areas, point to a troubling unevenness, which is an essential point here concerning the consistency of medical practice and law enforcement.[25] Women of color received nowhere near the same sympathy and access to safe abortion as white women, from the overwhelmingly white medical profession. For instance, one study of medical practices in Georgia concluded that, in 1970, single white women were twenty-five times more likely to be granted a “therapeutic abortion” than single black women.[26] Of course patterns like this pushed poor and minority women to procure unsafe abortions. Matters were not much better in the supposedly more tolerant North. A study by Gold et al. of abortions in New York City from 1951 to 1962 concluded that 108 white women died due to abortion, compared to 466 black and Puerto Rican women—over a 400% differential, despite white women making up a larger percentage of the population.[27] Polgar and Fried surveyed impoverished neighborhoods in New York City in 1965 and 1967, and based on respondents’ answers, found that physicians were involved in only 2 percent of abortions.[28] Meanwhile, 93 percent of all therapeutic abortions were performed on white women, physician-approved.[29] It is difficult to imagine there being a biological or environmental reason for white women to be so disproportionately in need of therapeutic abortions. The sufficient explanation is white privilege operating in the medical field.
Women of color were much less likely than white women to be able to afford or acquire safe, physician-attended abortions. Hospitals routinely denied them legal therapeutic abortions. One’s ability to find the right connections, speak the right terms, and navigate committees of doctors became a test of wealth. Rochat et al. observe that at a nationwide level, as anti-abortion enforcement increased in the mid-twentieth-century, albeit selectively, the mortality rate for black women due to abortion increased from two times that of white women in 1933, to six times that of white women in 1966.[30] Another study reported that illegal abortions accounted for half of all maternity-related deaths among black women in New York City in the 1960s, which is highly disproportionate.[31] By comparison, during the Great Depression, abortion was listed as the official cause of death for only 18 percent of women who died of maternal causes.[32] In the South, one would expect those disparities to be worse, and Packer indeed confirms it. In a single decade, in Georgia, the mortality rate for black women due to abortion went from four times that of white women in 1960 to fourteen times by 1969.[33] We must bear in mind that race and disability might be the easiest characteristics to measure. Class is less obvious. Connectedness can only be inferred.
Equal Choice and Equal Justice as Constitutional and Moral Demands
Given the state of actual anti-abortion policy as practiced on the ground, some constitutional scholars like Graber raise the question of equal choice or equal justice. If medical policies are so selectively followed, and laws are so selectively enforced – especially in a patterned way that reflects other persistent social inequalities – is there a legal, even constitutional, problem? The Fourteenth Amendment guarantees to citizens the right to be treated equally under the law. One very early Supreme Court case demonstrates how equal treatment under the law is significant. In Yick Wo v. Hopkins (1886), Yick Wo was convicted of running a laundry business without a license. San Francisco denied licenses to all Chinese laundry operators. It granted licenses to all other laundry operators but one. Law enforcement had arrested more than a hundred Chinese people for operating laundries without licenses. The Court overturned Wo’s conviction, saying, “Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations, between persons in similar circumstances… the denial of equal justice is still within the prohibition of the Constitution.”[34] While this commitment has been eroded by later Supreme Court decisions, especially McClesky (1987) during Reagan’s “war on drugs,” another example of a policy that allowed for police and prosecutors to act on their racial and class prejudices, the issue is relevant from the standpoint of constitutional meaning and Christian moral principles.
Christians should be deeply concerned about the “equal protection” clause of the Fourteenth Amendment and the consistency with which policies and laws are followed because of how deeply this concern resonates with biblical principles. In the Old Testament, God commanded procedural equality before the law, where Israel’s judges were to uphold the principle that “there shall be one standard for you, for the stranger as well as the native” (Lev 19:22). This central idea came replete with command after command to refuse partiality, bribery, and the like (Exod 23:8; Deut 16:19; 27:25; Isa 1:23; 5:23; 33:15; Ezek 22:12; Amos 5:12; Mic 7:3; Ps 15:5; Prov 17:23; 2 Chron 19:6 – 9), which applies to both money and services, offerer and receiver. In Jesus’ teaching, we find the Golden Rule: “do unto others as you would have them do unto you” (Matt 7:12). This is based on the principle, “love your neighbor as yourself” (Matt 22:39).
One impact of Roe v. Wade was that deaths of women from abortion procedures themselves virtually disappeared.[36] Data from other countries bears out this pattern. South Africa, for instance, legalized abortion in 1996, and showed a “90 percent decrease in mortality among women who had abortions.”[37] The maternal death rate had already descended remarkably due to other medical advances in the abortion procedures themselves and the treatment for any complications, such as penicillin. So we cannot assign all the credit to Roe for doing that in the context of the U.S.[38] But we can assign to Roe credit for more equal treatment to women across the board. That was foreseeable, as New York had already learned; the year New York legalized abortion, women of color obtained 56 percent of all legal abortions, compared to 6 percent previously.[39] Roe also allowed state regulators, physicians, and researchers to work together, in the open, towards the goal of maximizing safety to the mother. The death rate from legal abortions fell from 18.6 per 100,000 procedures in 1970 to 0.5 per 100,000 procedures in 1980.[40]
Treating Abortion Differently This Time?
Policies which allow for such discriminatory practices, administered “with an evil eye and unequal hand,” which we can anticipate with reasonable certainty in various states, are hard to morally justify. These patterns are likely to emerge again after Dobbs. The vigilante enforcement mechanism introduced by Texas will likely lead to more lawsuits brought against doctors who serve minority and poor communities, and doctors who are non-white themselves. Arguing that deterrence nevertheless happens might not be sufficient moral counterweight. Such policies might be politically possible, but only because a majority of people who can still benefit from the corruption of medicine and law —again, along the lines of race, class, and connectedness—are willing to use statute laws as mere symbols. If there is reasonable belief that this will be the result, what are the moral and legal implications? Graber says, “Significantly, no major pro-life official has announced a plan for preventing the rebirth of the abortion underground.”[35]
Therefore, we move to consider other paradigms of accountability, and other ways to understand the issues themselves.
[1] Brownmiller, “Dr. Spencer.”
[2] Boyer, Oxford Companion to United States History, 3. Reagan, When Abortion, 134–135, 305, n 13. Garrow, 272 calls this estimate “the best available demographic estimate.”
[3] Williams, Pro-Life Movement, 35 notes that Dr. Alan Guttmacher said in a 1961 private letter that in his practice, about 60 percent of abortions were psychiatric; in 1963, Buffalo hospitals reported that 88 percent of all abortions were for psychiatric reasons.
[4] Guttmacher, “Therapeutic Abortion,” 118.
[5] Messer and May, Back Rooms, 179–180.
[6] Hall, “Abortion in American Hospitals,” 1933. Williams, Pro-Life Movement, 35.
[7] Graber, Rethinking Abortion, 49; see the long list of citations he provides
[8] Graber, Rethinking Abortion, 55 cites Bates and Zawadski, Criminal Abortion, 79–80 and Burtchaell, Rachel Weeping, 49. Graber adds in the footnote, “Several persons who wish to remain anonymous have informed me that large hospitals in New York City, Boston, and St. Louis also practiced this subterfuge.”
[9] Calderone, Abortion in the United States, 80 cited by Graber, Rethinking Abortion, 42.
[10] Graber, Rethinking Abortion, 19. Italics mine.
[11] Graber, Rethinking Abortion, 19.
[12] Graber, Rethinking Abortion, 42.
[13] Graber, Rethinking Abortion, 45.
[14] Miller, Worst of Times, 123–125, 135.
[15] Miller, Worst of Times, 127.
[16] Garrow, Liberty, 274.
[17] Caron, Who Chooses, 41, citing Petchesky, Abortion, 53. Reagan, When Abortion, 23, citing Gordon, Woman’s Body, 493 n 23.
[18] Calderone, “Illegal Abortion,” 949 and Guttmacher, Case, 69, 71–72 discussed by Forsythe, Abuse, 201–202.
[19] Gold et al., “Lessons.”
[20] Graber, Rethinking Abortion, 23
[21] Douthat, “What Reduces Abortion Rates,” also refers to Claeys, “Abortion Legislation in Europe,” 14, who gives helpful commentary on how to understand abortion rates in various European countries, as well as challenges with data collection.
[22] Joyce et al. “Back to the Future?”
[23] Thomson-DeVeaux. “When Abortion.”
[24] Joyce et al. “Back to the Future?” 26, 27.
[25] Charles and Alexander, “Abortions for Poor and Nonwhite Women, 150–51.”
[26] Rochat et al., “An Epidemiological Analysis,” 548. See also Rodman et al., The Abortion Question, 149–150 and Rosen, “Emotionally Sick,” edited by Rosen, Abortion in America, 73 for racially discriminatory distribution of abortions in Baltimore, Maryland.
[27] Gold et al., “Therapeutic Abortions,” 964–66. Graber, Rethinking Abortion, 8 notes, “The persons responsible for administering abortion policy did, however, take steps that prevented competent abortionists from offering the same services to the general public. The resulting exclusive gray market . . . violates the philosophical and constitutional principle that persons must be governed only by general laws, rules of universal application made by their elected representatives.”
[28] Polgar and Fried, “Bad Old Days.”
[29] Gold et al., “Therapeutic Abortions,” 966. Graber, Rethinking Abortion, 8
[30] Rochat et al., “Epidemiological Analysis,” 543–544. Graber, Rethinking Abortion, 59.
[31] Weisbord, Genocide, 116, discussed by Roberts, Killing, 102.
[32] Gold, “Lessons.”
[33] Packer, Limits, 343. Graber, Rethinking Abortion, 59.
[34] Although the McClesky v. Kemp (1987) decision went contrary to this basic principle, the direction of the Court is uncertain, and equal choice claims might still be upheld with McClesky remaining a judicial outlier, or even overturned. Discussed by Graber, Rethinking Abortion, 77–107 and Alexander, New Jim Crow, 109–114.
[35] Graber, Rethinking Abortion, 73–74; see citations.
[36] Culp-Ressler, “What Americans Have Forgotten.”
[37] Rosenthal, “Legal or Not.”
[38] Forsythe, Abuse, 203–207.
[39] Graber, Rethinking Abortion, 67.
[40] Graber, Rethinking Abortion, 68.