Arizona’s 160-year-old abortion ban, which was upheld Tuesday by the state’s highest court, was among a wave of anti-abortion laws prompted by some historic reversals that may seem surprising.
For decades after the United States became a nation, abortion was legal until fetal movement was felt, usually well into the second trimester. The movement, known as quickening, was the threshold because, in an era before pregnancy tests or ultrasounds, it was the clearest sign that a woman was pregnant.
Before that point, “women could try to get an abortion without having to fear that it was illegal,” said Johanna Schoen, a history professor at Rutgers University. Once expedited, abortion providers could be charged with a misdemeanor.
“I don’t think it was particularly stigmatized,” Dr. Schoen said. “I think what was stigmatized was maybe this idea that you had sex outside of marriage, but of course married women ended their pregnancies too.”
Women would terminate pregnancies in many different ways, including ingesting herbs or medicinal potions believed to induce miscarriage, Dr. Schoen said. Commonly used herbs included pennyroyal and tansy. Another method involved inserting an object into the cervix to try to interrupt a pregnancy or terminate it by causing infection, Dr. Schoen said.
Since there were no early pregnancy detection tools yet, many women could honestly say that they were not sure if they were pregnant and were simply taking herbs to restore their period.
Abortion providers described their services in discreet but widely understood terms.
“It was open, but with code words,” said Mary Fissell, a professor of the history of medicine at Johns Hopkins University. Abortion drugs or herbs were called “female moon pills” or “French makeover pills,” she said.
Newspaper advertisements made it clear that these abortion services were available.
“Abortion was commercialized in the mid-19th century, until the Civil War,” Dr. Fischel said. “You couldn’t pretend the abortion wasn’t happening.”
In the 1820s, some states began passing laws restricting abortions and setting certain penalties for providers, according to historians.
By the 1840s, there were some high-profile trials in which women who had or sought abortions became very ill or died. Some cases involved a British-born midwife, Ann Trow Summers Lohman, known as Madame Restell, who provided herbal pills and other abortion services in New York, who passed a law under which providers could be charged with manslaughter for abortions after delivery and providers and patients could be charged with misdemeanors for pre-acceleration abortions.
But strikingly, a major catalyst for abortion bans enacted across the country was the emergence of organized and professional medicine, historians say.
After the American Medical Association, which would eventually become the nation’s largest physician organization, was founded in 1847, its members—all male and white at the time—tried to limit medical practice by midwives and other nonphysicians, most of whom were women. Methods of terminating pregnancy were often provided by people in these professions, and historians say this was one reason for the union’s desire to ban abortions.
A campaign that became known as the Physicians’ Crusade Against Abortion began in 1857 to urge states to pass anti-abortion laws. Its leader, Dr. Horatio Robinson Storer, wrote an anti-abortion paper that was officially adopted by the AMA and later published as a book entitled “On Criminal Abortion in America.”
Later, the club published ‘Why Not? A Book for Every Woman’, also written by Dr. Storer, which said abortion was immoral and criminal and argued that married women had a moral and social obligation to bear children.
Dr. Storer advanced an argument that life began at conception.
“It creates a kind of moral quandary, and it does so for a number of reasons that make it attractive,” Dr. Fischel said. In a sense, the argument coincided with the emerging medical conception of embryology which characterized pregnancy as a continuum of development and did not consider acceleration to be its defining stage.
There were also social and cultural forces and biases at play. Women began to push for more independence, and the male-dominated medical establishment believed that “women should be at home to make babies,” Dr. Fischel said.
Racism and anti-immigrant attitudes in the second half of the 19th century began to fuel support for eugenics. Several historians have said that these undercurrents were partly behind the anti-abortion campaign led by Dr. Storer.
“People like Storer were very concerned that the wrong Americans were reproducing and that nice white Anglos were having abortions and not having enough children,” Dr. Fischel said.
A moral streak was also gaining prominence, including the passage of the Comstock Act in 1873, which banned the sending of pornographic material and anything related to contraception or abortion.
By 1880, about 40 states had banned abortion. Arizona enacted its prohibition in 1864 as part of a legal code it adopted soon after becoming a state.
The law, ARS 13-3603, states: “A person who supplies, supplies, or administers to a pregnant woman, or procures such woman to take any drug, medicine, or substance, or uses or employs any instrument or other means, with intent thereby to prevent the abortion of such woman, unless necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.”
“It was early,” Dr. Schoen said, “but it’s part of that wave of legislation that was passed between the 1860s and the 1880s.”
