Reproductive Rights pre-Roe v. Wade

By Jonathan L. Green

Abortion, defined here as the purposeful termination of pregnancy, has existed in different forms—surgical, medicinal and physical—across the globe for thousands of years (the first written record of an induced abortion is more than 3,500 years old). In ancient Egypt, Greece, southeast and east Asia, among other places, abortion was performed by midwives, barbers and surgeons well before the advent of Christianity (and for centuries after). While it was prohibited in some cases by the teachings of religious leaders, the majority of the laws and customs governing the practice were based on the health of birth-givers and early versions of what we now call parental rights.

In America, abortion was only lightly governed by laws until the mid-1800s. Though there were some statutes in place earlier in the century, they were focused on medical malpractice, prohibiting the manufacture and sale of “snake oil” pharmaceuticals that did nothing to terminate a pregnancy and poisoned those who took them. Abortion had its religious opponents, but still it was widely practiced in much of the Western world and went mostly unregulated when performed in the first four months of pregnancy (before “quickening,” when fetal movements can be felt by the carrier). The American Medical Association (AMA), founded in Philadelphia in 1847, sought to professionalize medicine and restrict its practice to only those educated and certified in Western medicine. Through its first 50 years in existence, the AMA wrote and lobbied for legislation to outlaw sales of folk remedies and ban cultural medical practices it found to be unethical. As a result, many midwives and barber-surgeons—including those who performed abortions—were driven out of business, or, at least, underground: British immigrant Ann Trow, operating under the pseudonym Madame Restell, was a New Yorker abortionist specifically targeted by the AMA’s Committee on Criminal Abortion’s laws in the late 1850s. She continued her practice for two more decades, despite arrests and controversies.

In 1873, Congress passed the Comstock Act, named for anti-obscenity crusader and postal inspector Anthony Comstock. A religious conservative, Comstock fought against the practice of, and demand for, pornography and prostitution, the latter of which he thought was facilitated by the availability of medical abortion and contraception. His eponymous law prohibited the creation, publication and distribution of any “obscene” or “immoral” literature and articles, including and especially information about abortion and what is now called birth control. In 1878, Comstock himself led an undercover operation to entrap Trow by disguising himself as a customer looking for contraceptives; Trow was arrested, paid bail, and ended her life soon after. By the end of the century, both birth control and abortion were banned nationwide.

In the lead-up to World War I, nurse and writer Margaret Sanger found herself at odds with the Comstock Act following the publication of her pamphlet Family Limitation. A socialist and activist for the Chicago-based Industrial Workers of the World, Sanger was a proponent of contraception because, among other things, it gave working-class women autonomy over their own bodies, a right already (though discretely) afforded to the upper classes. “It is only the workers who are ignorant of the knowledge of how to prevent bringing children in the world to fill jails and hospitals, factories and mills, insane asylums and premature graves, and who supply the millions of soldiers and sailors to fight battles for financiers and the ruling classes. The working class can use direct action by refusing to supply the market with children to be exploited,” she wrote. In 1914, in the radical, anti-Comstock publication The Woman Rebel, Sanger first coined the term “birth control.” Two years later, she was arrested for opening the first birth control clinic in the country in Brownsville, Brooklyn. She served a sentence in a workhouse, but the visibility of her arrest and court case kickstarted a public interest in birth control. When she founded the American Birth Control League a few years later in 1921, she found funders—including John D. Rockefeller, Jr.—were more than willing to open their pocketbooks for her cause. When a court ruling made contraceptives legal when prescribed by a doctor, birth control re-entered the public market.

Supreme Court, Washington D.C., US. Photo by Claire Anderson.

As soldiers returned home after World War I, armed with wider knowledge (and experience) of condoms—far more available in Europe than in America at that time—contraceptive usage became practically commonplace. In the 1940s and early ‘50s—as America entered, exited and began to recover from WWII—society leaned increasingly conservative. Abortion laws were enforced more strictly, and black-market abortions became even more dangerous. Sanger’s American Birth Control League changed names to the more friendly and respectful-sounding Planned Parenthood.

American society would change forever in 1960, with the introduction of the birth control pill—oral medical contraception, the first of its kind since sales of folk remedies had been banned a century before. Enovid, a mix of estrogen and progestogen that could eliminate ovulation as long as a patient took the pharmaceutical, was first approved by the FDA in 1957 for menstrual disorders—it took three more years to be approved for contraceptive use. Sales of “the Pill” skyrocketed and, in part, ushered in the Sexual Revolution of the 1960s and ‘70s. Still, many states prohibited its usage until the Supreme Court ruled in 1965’s Griswold v. Connecticut that the Constitution guaranteed women the right to privacy, which includes privacy surrounding intimate medical decisions. Griswold extended the federal right to contraception to all married women, followed by 1972’s Eisenstadt v. Baird, which extended the right to unmarried women as well.

Griswold’s ruling on the legality of contraception resonated throughout the arena of reproductive rights, and that same year, the ban on abortion was lifted by state legislatures in California, Colorado, Hawaii, New York and Washington. But in other states–including Texas, where a young mother named Norma McCorvey wanted an abortion and a 25-year-old lawyer named Sarah Weddington wanted to take the issue to court–a Supreme Court decision was the only thing that could change those state-wide bans first instituted more than 75 years prior.

Jonathan L. Green is the Literary Manager at Goodman Theatre and Dramaturg for Roe.