Judith Levine: Alito says that abortion is not deeply rooted in American history. Please, correct him.
Rickie Solinger: Abortion has not just been part of the American experience throughout its history. During the founding period, it was part and parcel of the daily life of American women. According to common law, which was adopted in the colonies and then in the country in the early decades, abortion was understood as a common practice and unopposed before quickening [the time the fetus can be felt moving in the womb], which was understood to take place at the twenty-third or twenty-fourth week, quite similar to what Roe cites. Also, quickening was an experience that could only be reported by the expert—that is, the woman in whose body it took place. And before quickening women were free to find an abortifacient if they could.
JL: There’s a lot of scholarship showing that the impetus to criminalize abortion in the 1860s came in part from doctors, who were seizing authority over reproduction, including abortion, from midwives and doulas and professionalizing—and beginning to profit from—obstetrics and gynecology. But that doesn’t seem like enough to turn a common practice into a crime. What else was happening?
RS: The criminalization of abortion occurred simultaneously with movement coalition around [opposition to] women’s rights, the rise of virulent anti-immigrant sentiment in the second half of the 19th century, and also—and most interestingly in some ways—during the pro-slavery expression and politics of the 1850s and ’60s. You can attach all of these to the rise of anti-abortion rhetoric and legal provision.
[At the same time] abolition was a movement to give people the right to their own bodies. At the very center of slavery was the coerced reproduction of the enslaved population. What the Thirteenth Amendment accomplished—and it’s rarely seen this way1—is the reproductive autonomy that came with abolition.
JL: When you compare that time to now, we are again in a period of profound contest about the legal status of the bodies of Black people—whether police are allowed to shoot them, for instance.
RS: In this surge of antiabortion politics over the last fifty years, we can’t completely turn aside the legitimate religious fervor associated with it. But the rise of a certain kind of antiabortion religious fervor is rooted in a project to revitalize race and gender hierarchies. And class hierarchies. We know who is going to suffer most from criminalization. Obviously, people of color are going to suffer. People who have class privilege will go wherever they need to go.
JL: In one of your books you quote Senator Henry Hyde [introducing the Hyde Amendment, which prohibits Medicaid funding of abortion] in 1977: “I certainly would like to prevent, if I could legally, anybody having an abortion, a rich woman, a middle-class woman, or a poor woman.” We know that what he did best was prevent poor women, and so have the hundreds of other restrictions enacted since. Now recriminalization will harm pregnant people of color and the poor most. Still, I keep thinking: an $800 back-alley abortion in 1960 was no picnic. Rich women died or were permanently injured or sterilized too.
RS: The statistics that exist from the criminal era demonstrate without question that the people most vulnerable to damage and death were poor women and women of color. That’s one of the reasons that not all the statistics are available—public health records were not as good for people of color and poor neighborhoods; the women may not have died in hospitals, so those stats were not collected. Still, there are no morbidity and mortality statistics anywhere demonstrating that there were enormous numbers of deaths, regardless of class or race. By far, the lion’s share of these procedures were done by people who did them every day, day in and day out, and women were protected by this long and careful experience. I wrote a book called The Abortionist. It tells the story of Ruth Barnett, who performed thousands of abortions in Portland, Oregon in the first half of the twentieth century, up to 1968. In forty years, she never lost a patient.
Most of the time, law enforcement in every city and town in America, just about, protected the abortionists because they saw these experienced practitioners as public health assets. The only time law enforcement kicked in (and of course law enforcement took their own wives and girlfriends to illegal abortionists) was when there was a death or when there was a moral panic, like right after World War II. That’s when these trials started up in earnest. Ruth Barnett started being arrested regularly in the 1950s. All these cities and towns were under a general cultural injunction to prove that they were not “sin cities.” That they were clean upright American cities—it was sort of an anti-communist crusade.
JL: What did these prosecutions look like?
RS: The case [against the practitioner] could only be made on the testimony of the person whose body was lying on the table during the police raid. The argument was not that this woman or girl murdered a child or a potential child, but that she was willing to murder her relationship to motherhood; she was not enacting her role, her destiny properly. There was an enormous amount of effort to degrade this deviant female. The prosecutor [would say] to the girl on the stand: “We’re going to roll the abortion table into the courtroom now, and I want you to tell the jurors”—and the courtroom full of male spectators—“how your body was arrayed on the table and how far apart your legs were spread and which instruments were placed into which of your orifices. And by the way, Miss Smith, could you tell us why you were willing to have sex with that man and not have his baby? And also, Miss Smith, could you tell the jury, please, how many other men you had sex with?”
JL: The state was officially prosecuting the practitioner. And maybe going to jail is one of the risks of providing an illegal service. But it sounds as if the person getting the abortion was on trial—she was vilified and criminalized.
RS: When you make something criminal which for various reasons is essential to the lives of many, many people, then it’s not the behavior that becomes so dangerous generally—it’s the consequences of the illegality. You could be publicly humiliated by both the lack of power and by having your picture appear on the front pages of the newspaper, half-dressed during abortion raids, which happened regularly.
Yes, there was damage, there were deaths. But during the criminal era, the safety of the procedure was not the big problem. It was the law, not the so-called back alley, that endangered women’s lives.
JL: That’s such an important point. Because the standard argument against criminalization of sex work or drugs, or abortion, is that it doesn’t stop the practice, it just drives it underground, where it’s unregulated, controlled by bad actors. It becomes more expensive, more invisible—more dangerous for both the provider and the client.
RS: Criminalization does increase the risk of physical harm. But that is basically a consumer protection argument: It’s not safe enough. The fact is that whether anyone ever climbed on an abortion table or not, the message of criminalization to all people who can get pregnant is: You don’t have dominion over your own body, you are always vulnerable, always in danger of being surveilled. You are vulnerable not only because the law makes behavior a crime and you can be punished for committing a crime.
Criminalization sends a message to all women that you are endangered as a citizen.
JL: Physical harm has been in the forefront of the fight for abortion rights forever. Doctors’ testimony of treating patients in the aftermath of botched abortions was crucial in persuading the Roe court to legalize abortion. And the coat hanger is still the symbol of what “we won’t go back to.”
RS: When we talk with such focus on the physical danger that criminalization causes and we don’t talk about the danger to women’s human status, we are allowing ourselves to make a consumer rights argument rather than a human rights argument. This is a terrible mistake. Especially right now, there is likely to be a relatively small number of damage and death cases, because of the abortion pill and [aid] networks.
Any physical damage or death is important. But women’s citizenship status—their human status—is undermined by the criminalization of their life decisions, intrusions into the management of their bodies, and the lack of equal protections that they must live under. There is no country in the world where women are full citizens where they don’t have extensive bodily integrity and autonomy.