>Coming from the same Catholic background as Doug, I've had to wrassle
>with all of that jive about abortion = murder, but I *really* don't think
>that defending reproductive rights puts us on a slippery slope towards
>becoming the Khmer Rouge...
Catholic anti-abortion doctrine is surprisingly recent, as is the whole notion that abortion is murder. Here are some excerpts from Kristin Luker's Abortion and the Politics of Motherhood. I've scanned the whole second chapter (about 11,000 words in all - this is about a third of the whole); email me privately if you want a copy.
Doug
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excerpts from chapter 2 of Kristin Luker, Abortion and the Politics of Motherhood (University of California Press, 1984
chapter 2 MEDICINE AND MORALITY IN THE NINETEENTH CENTURY
Surprising as it may seem, the view that abortion is murder is a relatively recent belief in American history. To be sure, there has always been a school of thought, extending back at least to the Pythagoreans of ancient Greece, that holds that abortion is wrong because the embryo is the moral equivalent of the child it will become. Equally ancient however is the belief articulated by the Stoics: that although embryos have some of the rights of already-born children (and these rights may increase over the course of the pregnancy), embryos are of a different moral order, and thus to end their existence by an abortion is not tantamount to murder.
Perhaps the most interesting thing about these two perspectives (which have coexisted over the last two thousand years) is the fact that modern-day subscribers to the first point of view - that abortion is always murder- have been remarkably successful in America at persuading even opponents that their view is the more ancient and the more prevalent one. Their success in this effort is the product of an unusual set of events that occurred in the nineteenth century, events I call the first " right-to-life" movement. After a brief review of the history of abortion prior to the nineteenth century, this chapter will be dedicated to examining that first anti-abortion movement, which so decisively shaped the modern debate on abortion in America. Those readers interested in exploring in more detail the early history of abortion (or examining the claims made here about that history) can consult a number of excellent works on the topic.
In the Roman Empire, abortion was so frequent and widespread that it was remarked upon by a number of authors. Ovid, Juvenal, and Seneca all noted the existence of abortion, and the natural historian Pliny listed prescriptions for drugs that would accomplish it. Legal regulation of abortion in the Roman Empire, however, was virtually nonexistent. Roman law explicitly held that the "child in the belly of its mother" was not a person, and hence abortion was not murder. After the beginning of the Christian era, such legal regulation of abortion as existed in the Roman Empire was designed primarily to protect the rights of fathers rather than the rights of embryos. Similarly, although early Christians were actively pro-natalist and their rhetoric denounced abortion, contraception, homosexuality, and castration as all being morally equivalent to murder, the legal and moral treatment of these acts-and particularly the treatment of abortion - was never consistent with the rhetoric.' For instance, induced abortion is ignored in the most central Judeo-Christian writings: it is not mentioned in the Christian or the Jewish Bible, or in the Jewish Mishnah or Talmud. Abortion, it is true, was denounced in early Christian writings such as the Didache and by early Christian authors such as Clement of Alexandria, Tertullian, and St. Basil. But church councils, such as those of Elvira and Ancyra, which were called to specify the legal groundwork for Christian communities, outlined penalties only for those women who committed abortion after a sexual crime such as adultery or prostitution. Most importantly, perhaps, from the third century A.D. onward, Christian thought was divided as to whether early abortion-the abortion of an "unformed" embryo was in fact murder. [Footnote: The distinction between the formed and the unformed embryo, which drew on Aristotelian beliefs about pregnancy, was first introduced in the Septuagint, the Greek translation of the Bible. Though rejected by some (e.g., St. Basil), it was formally entered into legal and theological arguments by Tertullian in De Anima, where abortion was held to be murder only if the embryo was formed; later this holding was ratified by Jerome, Ivo of Chartres, and Gratian. For an overview of the development of Christian thinking in this area, see Noonan, Contraception, pp. 10-12; Huser, The Crime of Abortion, p. 18; and Grisez, Abortion, pp. 137-55.] Different sources of church teachings and laws simply did not agree on the penalties for abortion or on whether early abortion is wrong.'
In the year 1100 A.D., this debate was clarified, but hardly in the direction of making abortion at all times unequivocally murder. Ivo of Chartres, a prominent church scholar, condemned abortion but held that abortion of the "unformed" embryo was not homicide, and his work was the beginning of a new consensus. Fifty years later Gratian, in a work which became the basis of canon law for the next seven hundred years, reiterated this stand.
The "formation" of an embryo (sometimes known as "animation" or "vivification") was held to happen at forty days for a male embryo and at eighty days for a female embryo; the canonist Roger Huser argues that in questions of ambiguity the embryo was considered female. In this connection it is important to remember an intriguing fact of human embryology: all embryos start out morphologically female and remain so until the sixth week of pregnancy; and they continue to appear female to the naked eye until at least the fourth month of pregnancy.' In practice, then, Gratian's rulings, which remained intact until the nineteenth century, meant that even Catholic moral theology and canon law-which were, in effect, the moral and legal standard for the Western world until the coming of the Reformation and secular courts-did not treat what we would now call first trimester abortions as murder.' (And given the difficulty in ascertaining when pregnancy actually began, in practice this toleration must have included later abortions as well.)
Nineteenth-century America, therefore, did not inherit an unqualified opposition to abortion, which John Noonan has called an "almost absolute value in history."' On the contrary, American legal and moral practice at the beginning of the nineteenth century was quite consistent with the preceding Catholic canon law: early abortions were legally ignored and only late abortions could be prosecuted. (In fact, there is some disagreement as to whether or not even late abortions were ever prosecuted under the common law tradition.)
Ironically, then, the much-maligned 1973 Supreme Court decision on abortion, Roe v. Wade, which divided the legal regulation of abortion by trimesters, was much more in line with the traditional treatment of abortion than most Americans appreciate. But that in itself is an interesting fact. The brief history of abortion just outlined, as well as the Supreme Court decision, seems very much at odds with what many Americans-and not only those with pro-life sympathies-have believed: that until recently, abortion was always treated both popularly and legally as the moral equivalent of murder.
This chapter will argue that such a pervasive misapprehension about the historical status of abortion is due in large part to the effects of the first "right- to-life " movement in the United States, which took place approximately between 1850 and 1890. This movement, composed primarily of physicians, made what was in the context a novel claim: that abortion at all periods of pregnancy was murder. In view of the success of this first movement, there is a further irony in the fact that when we look closely at the circumstances and behavior of these nineteenth-century physicians, we find that even most of them were not certain that abortion was really murder and that their opposition to abortion was based on more complicated motives than a desire to protect embryonic life.
THE ORIGINS OF THE FIRST RIGHT-TO-LIFE MOVEMENT
At the opening of the nineteenth century, no statute laws governed abortion in America. What minimal legal regulation existed was inherited from English common law tradition that abortion undertaken before quickening was at worst a misdemeanor. Quickening, as that term was understood in the nineteenth century, was the period in pregnancy when a woman felt fetal movement; though it varies from woman to woman (and even from pregnancy to pregnancy in the same woman), it generally occurs between the fourth and the sixth month of pregnancy. Consequently, in nineteenth-century America, as in medieval Europe, first trimester abortions, and a goodly number of second trimester abortions as well, faced little legal regulation. Practically speaking, the difficulty of determining when conception had occurred, combined with the fact that the only person who could reliably tell when the pregnancy had "quickened" was the pregnant woman herself, meant that even this minimal regulation was probably infrequent. In 1809, when the Massachusetts State Supreme Court dismissed an indictment for abortion because the prosecution had not reliably proved that the woman was "quick with child," it was simply reiterating traditional common law standards.
In contrast, by 1900 every state in the Union had passed a law forbidding the use of drugs or instruments to procure abortion at any stage of pregnancy, "unless the same be necessary to save the woman's life." Not only were those who performed an abortion liable for a felony (usually manslaughter or second degree homicide), but in many states, the aborted woman herself faced the possibility of criminal prosecution, still another departure from the tolerant common law tradition in existence at the beginning of the century.
Many cultural themes and social struggles lie behind the transition from an abortion climate that was remarkably open and unrestricted to one that restricted abortions (at least in principle) to those necessary to save the life of the mother. The second half of the nineteenth century, when the bulk of American abortion laws were written, saw profound changes in the social order, and these provided the foundation for dramatic changes in the status of abortion. Between 1850 and 1900, for example, the population changed from one that was primarily rural and agricultural to one that was urban and industrial, and birth rates fell accordingly, declining from an estimated average completed fertility for whites of 7.04 births per woman in 1800 to an average of 3.56 births in 1900. The "great wave" of American immigration occurred in this period, as did the first feminist movement.
The intricate relationships between social roles, moral values, and medical technologies that were associated with changing patterns of fertility simultaneously became both the cause and the product of demographic strains-strains between rural and urban dwellers; between native-born "Yankees" and immigrants; between the masses and the elites; and possibly between men and women.
But within this complex background against which the first American debate on abortion emerged, we can trace a more direct social struggle. The most visible interest group agitating for more restrictive abortion laws was composed of elite or "regular" physicians, who actively petitioned state legislatures to pass anti-abortion laws and undertook through popular writings a campaign to change public opinion on abortion. The efforts of these physicians were probably the single most important influence in bringing about nineteenth-century anti-abortion laws. (Ironically, a century later it would be physicians who would play a central role in overturning these same laws.) Even more important is the fact that nineteenth-century physicians opposed abortion as part of an effort to achieve other political and social goals, and this led them to frame their opposition to abortion in particular ways. In turn, the way they framed the issue would cast a very long shadow over rounds of the debate yet to come.
THE BACKGROUND OF MOBILIZATION
Before we can understand the role of physicians in the abortion debate of one hundred years ago, we must recognize that our moern-day assumptions about both the nature of medicine and the nature of abortion in the nineteenth century are likely to be quite wrong.
Physicians in the nineteenth century
Modern observers accustomed to thinking of the medical profession as prestigious, technically effective, and highly paid are sometimes shocked to learn that it was none of those things in the nineteenth century. On the contrary, much of its history during that century was an uphill struggle to attain just those attributes. Whereas European physicians entered the modern era with at least the legacy of welldefined guild structures - structures that took responsibility for teaching, maintained the right to determine who could practice, and exercised some control over the conduct and craft of the professionAmerican physicians did not. Because of its history as a colony, the United States attracted few guild-trained physicians, and consequently a formal guild structure never developed. Healing in this country started out primarily as a domestic rather than a professional skill (women and slaves often developed considerable local reputations as healers), and therefore anyone who claimed medical talent could practice - and for the most part could practice outside of any institutional controls of the sort that existed in Europe.
It is true that some early colonies did establish different fee structures for "trained" as opposed to "folk" doctors, but these regulations were not supported by "enabling" legislation. "Trained" physicians had the right to charge more, but there were no regulatory mechanisms by which they could enforce their higher fees or, more importantly, deny others the right to practice medicine. From the earliest days of the medical profession in this country, therefore, physicians wanted effective licensing laws that would do for them what the guild structures had done for their European colleagues, namely, restrict the competition.
In the early part of the nineteenth century, the fate of trained physicians became even worse. What few regulations had existed in the colonial period were swept away in the era of Jacksonian democracy, and medical practice became one vast free market. Moreover, during the second quarter of the century, deep doctrinal divisions appeared within the ranks of trained physicians themselves. For the first third of the century, physicians had depended on a model of illness that called upon the use of drastic medical treatments such as bleeding or the administration of harsh laxatives and emetics. By the 1850s, a new group of physicians (including such luminaries as Oliver Wendell Holmes) rejected the use of this "heroic armamentarium" and earned for themselves the sobriquet of "therapeutic nihilists" inasmuch as they seemed to argue that anything a physician could do was probably ineffective and might be dangerous as well.
Two other developments during the course of the century kept the social and professional status of medicine low. First, as the effectiveness of "heroic" medicine was called into question by some physicians themselves, there was a proliferation of healers who advocated new models of treatment. Thomsonians, botanics, and homeopaths among others all developed "sects" of healing and claimed the title of doctor for themselves. These nineteenth-century sectarians flourished, perhaps in part because they tended to support relatively mild forms of treatment (baths, natural diets) instead of the "heroic" measures used by many doctors. Thus, regular physicians (those who had some semblance of formal training and who subscribed to the dominant medical model) found themselves in increasing competition with the sectarians, whom they considered quacks.
Concurrent with the emergence of the sectarians, there was an explosion of new medical schools: an estimated four hundred new ones opened during the course of the century. Unlike modern-day medical schools, whose strict admission standards are legendary, the majority of these schools were proprietary. Like modern-day vocational schools, they were open to all who could pay their fees, and precisely because they depended upon fees to survive, they were reluctant to fail anyone who could be counted on to pay tuition regularly.
Members of the regular medical profession were therefore caught in a dilemma. In order to upgrade the profession's status, they had to upgrade not only the standards of practice but also the education and qualifications of those who wished to practice. However, the prerequisite to such an upgrading-the restriction of the title of "doctor" to only the best and the best-trained physicians-was difficult to meet because of the lack of licensing laws. Physicians faced the paradox that they could not obtain licensing laws until they were "better" than the competition, but becoming "better" depended on having licensing laws. The way in which physicians solved this problem was to bring them to the center of the abortion debate in America.
Abortion in nineteenth-century America
With respect to abortion, as with respect to physicians, modern-day stereotypes about the nineteenth century can easily lead us astray. Contrary to our assumptions about "Victorian morality," the available evidence suggests that abortions were frequent. To be sure, some of these abortions may have been disguised (or rationalized) by those who sought them. Early in the century, a dominant therapeutic model saw the human body as an "intake-outflow" system and disease as the result of some disturbance in the regular production of secretions. Prominent among medical concerns, therefore, was "blocked" or "obstructed" menstruation, and the nineteenth-century pharmacopoeia contained numerous emmenagogues designed to "bring down the courses," that is, to reestablish menstruation. However, since the primary cause of "menstrual obstruction" in a healthy and sexually active woman was probably pregnancy, at least some of these emmenagogues must have been used with the intent to cause an abortion. Especially in the absence of accurate pregnancy tests, these drugs could be used in good faith by physicians and women alike, but the frequent warnings that these same drugs should not be used by "married ladies" because they would cause miscarriage made their alternative uses quite clear.
[...]
Physicians and abortion
In the second half of the nineteenth century abortion began to emerge as a social problem: newspapers began to run accounts of women who had died from "criminal abortions," although whether this fact reflects more abortions, more lethal abortions, or simply more awareness is not clear. Most prominently, physicians became involved, arguing that abortion was both morally wrong and medically dangerous.
The membership of the American Medical Association (AMA), founded in 1847 to upgrade and protect the interests of the profession, was deeply divided on many issues. But by 1859 it was able to pass a resolution condemning induced abortion and urging state legislatures to pass laws forbidding it; in 1860, Henry Miller, the president-elect of the association, devoted much of his presidential address to attacking abortion; and in 1864 the AMA established a prize to be awarded to the best anti-abortion book written for the lay public. Slowly, physicians responded to the AMA's call and began to lobby in state legislatures for laws forbidding abortion.
Why should nineteenth-century physicians have become so involved with the question of abortion? The physicians themselves gave two related explanations for their activities, and these explanations have been taken at face value ever since. First, they argued, they were compelled to address the abortion question because American women were committing a moral crime based on ignorance about the proper value of embryonic life. According to these physicians, women sought abortions because the doctrine of quickening led them to believe that the embryo was not alive, and therefore aborting it was perfectly proper. Second, they argued, they were obliged to act in order to save women from their own ignorance because only physicians were in possession of new scientific evidence which demonstrated beyond a shadow of a doubt that the embryo was a child from conception onward.
[omitted: long passage on how physicians falsely claimed new scientific knowledge about pregnancy that justified their control over the process - scientific knowledge that ordinary folks just did not understand...]
MOTIVES FOR MOBILIZATION
Thus, the question remains: why, in the middle of the nineteenth century, did some physicians become active anti-abortionists? James Mohr, in a pioneering work on this topic, argues that the proliferation of healers in the nineteenth century created a competition for status and clients. The "regular" physicians, who tended to be both wealthier and better educated than members of other medical sects, therefore sought to distinguish themselves both scientifically and socially from competing practitioners. Support of anti-abortion activity was admirably suited to this need. By taking an anti-abortion stand, regular physicians could lay claim to superior scientific knowledge, based on the latest research developments and theories (usually from abroad) to buttress their claim that pregnancy was continuous and that any intervention in it was immoral. At the same time, they could claim to be following the Hippocratic Oath, which contains a clause proscribing at least one form of abortion practice. The abortion issue thus gave them a way of demonstrating that they were both more scientifically knowledgeable and more morally rigorous than their competitors.
Mohr suggests that there were several more practical reasons why regular physicians should have opposed abortion. On the one hand, outlawing abortion would remove a lucrative source of income from competitors they called "quacks" and perhaps remove that temptation from the path of the "regulars" as well. In addition, the "regulars" were predominantly white, upper-income, and native-born; as such, they belonged to precisely the same group that was thought to harbor the primary users of abortion. As a result, they were likely to be concerned both about the depopulation of their group in the face of mounting immigration (and the higher fertility of immigrants) and about "betrayal" by their own women (because abortion required less male control and approval than the other available forms of birth control).
More broadly, Mohr argues that nineteenth-century physicians had a firm ideological belief that abortion was in fact murder. He asserts that they tended to place an absolute value on human life and that having established to their own satisfaction that abortion represented the loss of human life, abortion became included in this more general value. ' The historian Carl Degler has made much the same argument: "Seen against the broad canvas of humanitarian thought and practice in Western society from the seventeenth to the twentieth century, the expansion of the definition of life to include the whole career of the fetus rather than only the months after quickening is quite consistent. It is in line with a number of movements to reduce cruelty and to expand the concept of sanctity of life."
It is certainly true, as Mohr claims, that the mobilization of American physicians against abortion took place in the context of a profound dilemma within the medical profession, a dilemma produced by the lack of a traditional guild structure, the proliferation of competing medical sects and dissension within the ranks of the regulars themselves. Physicians wanted to upgrade their profession by obtaining licensing laws that would restrict medical practice to only the best and the besttrained among them. But lacking such licensing laws and given the ease with which one could become even a "trained" physician by attending one of the proliferating "proprietary" medical schools, regular physicians had no way of proving that they were any better than their competitors.
Nineteenth-century physicians needed to be "better" than their competition in order to persuade the public that licensing laws were not simply a self-serving "restraint of trade," designed only to raise the price of a doctor's bill by eliminating the competition. (The "restraint of trade" complaint arose routinely whenever regular physicians pressed for licensing laws.) But they could not be "better" until they had licensing laws that would purge their own numbers of the inadequate or the incompetent.
As we know, regular physicians succeeded in their campaign for licensing laws. More than almost any other profession, medicine now rigorously exercises the right to control who shall enter the profession, how they shall practice, and how competitors will be treated; its nineteenth-century stand against abortion contributed substantially to this ultimate success. It is in the context of this drive for professionalization that the political activity of American physicians against abortion must be understood. When examined closely in this context, their actual behavior raises serious doubts about whether they had, as Mohr and Degler claim, an unparalleled commitment to the "sanctity of life" of the embryo.
[...]
By the middle of the nineteenth century, therefore, American physicians had few if any of the formal attributes of a profession. The predominance of proprietary medical schools combined with the virtual absence of any form of licensing meant that the regulars could control neither entry into the profession nor the performance of those who claimed healing capacities. With the possible exceptions of the thermometer, the stethoscope, and the forceps, the technological tools of modern medicine were yet to come; and lacking the means of professional control, regular physicians were hard put to keep even those simple instruments out of the hands of the competition. Because they could offer no direct, easily observable, and dramatic proof of their superiority, regular physicians were forced to make an indirect, symbolic claim about their status. By becoming visible activists on an issue such as abortion, they could claim both moral stature (as a highminded, self-regulating group of professionals) and technical expertise (derived from their superior training).
Therefore, the physicians' choice of abortion as the focus of their moral crusade was carefully calculated. Abortion, and only abortion, could enable them to make symbolic claims about their status. Unlike the other medico-moral issues of the time-alcoholism, slavery, venereal disease, and prostitution-only abortion gave physicians the opportunity to claim to be saving human lives." Given the primitive nature of medical practice, persuading the public that embryos were human lives and then persuading state legislatures to protect these lives by outlawing abortion may have been one of the few life-saving projects actually available to physicians.
Physicians, therefore, had to exaggerate the differences between themselves and the lay public. Anti-abortion physicians had to claim that women placed no value on embryonic life whereas they themselves ranked the embryo as a full human life, namely, as a baby. But these two positions, when combined, created an unresolvable paradox for physicians, a paradox that would haunt the abortion debate until the present day.
[...]
The important difference between the nineteenth-century physicians' stand and the previous public and legal toleration for abortion does not lie in a radically new view of the nature of the embryo or of its rights. To be sure, on the rhetorical level, these physicians had made an almost unprecedented claim-that the embryo's right to life was absolute so that abortion at any period of pregnancy was murder. In practice, however, physicians agreed that the embryo's rights were in fact conditional. What was at the core of their movement, therefore, was a reallocation of social responsibility for assessing the conditional rights of the embryo against the woman's right to life, both narrowly and broadly defined. From the late nineteenth century until the late 1960s, it was doctors, not women, who held the right to make that assessment.