Victim or Accomplice: Crime, Medical Malpractice, and the Construction of the Aborting Woman in American Case Law, 1860s-1970


VICTIM OR ACCOMPLICE? : CRIME, MEDICAL
MALPRACTICE, AND THE CONSTRUCTION
OF THE ABORTING WOMAN IN AMERICAN
CASE LAW, 1860s-1970

LESLIE REAGAN

The state legislators who, in the 1860s and 1870s, passed laws that
for the first time criminalized abortion at all stages of pregnancy envisioned
the aborting woman as an active agent, one who searched out abortion
services in order to avoid the reproductive duties of marriage.
"Fashionable" and "well-to-do" married women, mid-nineteenth-century
anti-abortion commentators charged, filled the offices of abortionists.
These "selfish" women had been known to declare "that they have neither
the time nor the inclination to nurse babies."' This image of the aborting
woman, which provoked fears of feminism and fears that non-white and
Catholic groups would soon outpopulate white Protestants, inspired
lawmakers to criminalize abortion. Anyone who aided a woman's efforts to
end a pregnancy, whether by providing information, drugs and instruments,
or inducing an abortion, and in some states the woman as well, could be
prosecuted under the nation's new criminal abortion laws.2

The woman who aborted was the villain in this mid-nineteenth-
century anti-abortion story. Yet when the new criminal laws were put into
practice, the representation of the aborting woman dramatically changed.
Despite the consensus that produced the criminal abortion laws, the

Ph.D. University of Wisconsin, Madison, History, 1991, BA University of
California, Davis, Economics 1981, Associate Professor, University of Illinois, Urbana-
Champaign, History, Medicine, Women's Studies.

Acknowledgments: I am grateful to the American Historical Association for the
Littleton-Griswold award supporting early research on this project, to the Beatrice Bain
Research Group at the University of California, Berkeley, to Lynne Curry and Stacie Coiwell
for their research assistance, and to Hendrik Hartog and Daniel Schneider for their insightful
comments.

I James C. Mohr, Abortion in America: The Origins and Evolution of National
Policy, 1800-1900 94, 107, 108, ch. 4 (1978).

2 On the criminalization of abortion, see Mohr, supra note 1. See also Linda
Gordon, Woman's Body, Woman's Right: Birth Control in America 51-60 (rev. ed. 1990);
Carroll Smith-Rosenberg, Disorderly Conduct: Visions of Gender in Victorian America
217-44 (1985); Janet Farrell Brodie, Abortion and Contraception in Nineteenth-Century
America, ch. 8 (1994); Leslie J. Reagan, When Abortion Was a Crime: Women, Medicine,
and Law in the United States, 1867-1973 8-14 (1997). The criminal abortion statutes
remained virtually unchanged, except for raising the penalties, until the reform movement of
the 1960s. Mohr, supra note 1, at 200-25.



Columbia Journal of Gender and Law

character of the aborting woman was a subject of legal debate throughout
the century of illegal abortion. The judiciary was repeatedly asked whether
the woman who had an abortion was an "accomplice" in the crime of illegal
abortion or a "victim" of the criminal abortionist. The designation of the
aborting woman as victim or accomplice in the courtroom could
significantly affect trial outcomes. One definition cast the woman as
passive object of violence, the other, as active agent in crime. The debate,
carried out in courtrooms and recorded in appellate opinions, offers an
opportunity to investigate judicial thinking not only about sexuality and
gender, but also about the dual responsibility of the state to protect the
health and safety of its citizens and to punish those who violated the law.
Finally, analysis of jury actions affords a glimpse of the views of ordinary
citizens regarding women, abortion, and the duties of physicians.3

Judges settled the legal problem in contradictory ways. State
interests, legal principles, and gender norms all jostled for priority in the
judiciary's decision-making. Rulings on the question of whether the
woman was a victim or an accomplice in abortion depended first on
whether the issue arose in criminal or civil law. In the criminal law, jurists
easily found their way to a practical response that facilitated the state's goal
of prosecuting abortionists. 4 By the beginning of the twentieth century, the
courts ruled firmly and consistently that the aborting woman was a victim in
criminal cases. In the civil law, however, where women or their relatives
brought suits against abortionists for malpractice or wrongful death, the
state's interest was murky and no single solution could be found. As a
result, judicial attitudes toward women and men, crime and negligence, sex
and reproduction came to the fore and produced contradictory
interpretations of the law. The opposing rulings in these civil cases exposed
significant disagreement within the judiciary over the primacy of the state's
commitment to punishment versus protection of the citizenry.

Although the state courts never reached a consensus in the civil law
about how to regard the woman who aborted, the judiciary concurred on the
importance of the production of children within marriage. As Nancy Cott
has recently argued, marriage was not simply a romaitic or private

3 Over 200 state judicial opinions were identified through reports in the medico-
legal section of the Journal of the American Medical Association. See Annotation, Right of
Action for Iniury to or Death of Woman who Consented to Abortion, 21 A.L.R. Fed. 369-73
(1952); Francis Wharton, A Treatise on Criminal Law 1010-11 (11 th ed. 1912).

4 See Mohr, supra note I. Mohr found that although state laws provided for the
prosecution of women who had abortions, late-nineteenth-century state prosecutors went
after the abortionists. Juries were reluctant, however, to convict people accused of
performing abortions. As a result, prosecutors increasingly focused on prosecuting
abortionists whose practice had resulted in the death or severe injury of a woman patient.
This emphasis did not change until around 1940. Id. See also Leslie J. Reagan, "About to
Meet Her Maker": Women, Doctors, Dying Declarations, and the State's Investigation of
Abortion, Chicago, 1867-1940, 77 J. Am. Hist. 1240 (1991).

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relationship, but one highly regulated by the state. 5 The state granted
marriage contracts; it expected husbands and wives to produce families.
Furthermore, the refusal to do so, through the use of abortion and
contraception, was newly prohibited by law in mid-nineteenth-century
America. In the civil law, as the appellate record shows, an unmarried
woman who aborted was likely to be forgiven her transgressions and
allowed to bring suit in civil court; in contrast, a married woman was likely
to be reprimanded for her abortion and her suit prohibited. Reproduction,
these civil cases indicate, was more than a female or familial duty; it was a
married woman's duty to the state.

Once abortion reached the courtroom, prosecutors constructed an
image of the aborting woman that contrasted sharply with the prevailing
nineteenth-century representation of abortion that underpinned the criminal
abortion laws.6 Prosecutors bringing an accused criminal abortionist to trial
did not present the woman who had an abortion as an immoral woman bent
on avoiding motherhood, but instead represented her as a victim and told
the crime of abortion in the form of a rape narrative. Although the details
of each case were different, the goal of convicting criminal abortionists
produced a plot line that was the same in all cases: the woman who had the
abortion was a "victim" and the abortion operation was an "assault" on her
body. The assailant, however, was not the man with whom she had had
sexual intercourse, but the practitioner who terminated her pregnancy. The
fictional story of assault by abortionists denied that women brought
themselves to their practitioners and actively sought and arranged their
abortions.7

Defense attorneys for accused abortionists, in contrast, constructed
women who had abortions as accomplices. Depicting the woman as a
partner in the crime of abortion matched the attitude toward women that had
propelled passage of the criminal abortion laws in the first place. Making
the woman a co-criminal, whose words should not be believed, was also a
strategic tactic. Judges routinely warned juries to be cautious about
accepting the testimony of accomplices and state statutes required that the
testimony of accomplices be corroborated.8 Relying on the general rule in

5 Nancy F. Cott, Giving Character to Our Whole Civil Polity: Marriage and the
Public Order in the Late Nineteenth Century in U.S. Women's History as U.S. History: New
Feminist Essays 107-21 (1995).

6 This description of the legal debate in this and the following paragraph is based

on my reading of over 200 appellate opinions, as described above.

7 On the social history of abortion, see Reagan, supra note 2.

8 H.C. Underhill, A Treatise on the Law of Evidence 337-38 (1894). On the history

of these customs and rules, and hundreds of citations illustrating the endless discussion of
accomplices and the degree of corroboration required, see John Henry Wigmore, A Treatise
on the Anglo-American System of Evidence in Trials at Common Law 312-34 (3d ed. 1940).

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Columbia Journal of Gender and Law

criminal law that treated the testimony of accomplices as untrustworthy,
defendants in criminal abortion cases argued on appeal that their
convictions should be reversed since they had been convicted on the
testimony of an accomplice. If judges accepted the defense's argument and
treated women who had abortions as accomplices, it would have been
nearly impossible for prosecutors to win criminal abortion cases since, in
many cases, the state could not bring additional witnesses because no one
else had heard the negotiations or observed the operation. If the woman
who had an abortion was deemed "victim," prosecutors had an advantage; a
defendant accused of criminal abortion could be convicted on the testimony
of the aborted woman alone.

The problem of evident female complicity in the crime of abortion
was quickly resolved in the state's interest. The nation's higher courts
decided, repeatedly, that the woman was a victim and that her testimony
need not be corroborated. One of the earliest cases was an 1864 New York
case, in which a man convicted of advising a woman to take "Dr. Johnson's
French Female Pills" to induce a miscarriage complained that he had been
convicted on the testimony of the very woman whom he had assisted.9

Because she was an accomplice, he argued on appeal, the criminal law
required that her testimony be corroborated. The highest court of New
York concluded to the contrary. The court declared, "She did not stand
legally in the situation of an accomplice; for although she, no doubt,
participated in the moral offense imputed to the defendant, ...the law
regards her rather as a victim than the perpetrator of the crime."'" In an
1889 decision, the New York court elaborated; though the criminal abortion
statute envisioned "two persons ... co-operating in the commission of the
crime," the woman was regarded as "the subject, upon whose body the
crime is committed."" Regardless of a woman's actual behavior, her
demand for an illegal abortion, and her collaboration in inducing an
abortion, the judges decided to call her a victim.

A legislative backlash arose against the judicial interpretation of
women as victims of abortion and the power granted their words. At the
peak of the nation-wide campaign against abortion, when the representation
of the selfish married woman who aborted her pregnancy in favor of
frivolity over family was in circulation, two states tried to reverse the trend.

9 Dunn v. People, 29 N.Y. 523 (1864).

to Id. at 527. It should be noted that the courts' treatment of women as victims in

abortion cases cannot be explained as the natural result of the fact that the woman had died
following an illegal abortion, since as in this case and a number of others, the woman
survived her abortion efforts. Michael Grossberg remarked on mid-nineteenth-century
jurists' special treatment of women as victims of abortion, in Governing the Hearth: Law
and the Family in Nineteenth-Century America 164, 182-83 (1985).

"I People v. Vedder, 98 N.Y. 630, 631-32 (1889).

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California, in 1861, and Minnesota, in 1875, amended their laws to require
that the testimony of a woman be corroborated in abortion cases.
Physicians and surgeons, the California Legislature declared, could not be
"arrested, indicted, or put on trial, or convicted by the testimony of such
woman alone."' 2 "No conviction shall be had," the Minnesota Legislature
clarified in 1875, "upon the uncorroborated evidence of such a woman,"
because "such a woman" could not be trusted.'"

The conditions imposed by the California and Minnesota state
legislatures drew on a basic assumption about women in rape cases: a
woman who claimed she was a victim was apt to be lying. 4 It would be
dangerous, the legislators believed, to allow men, and particularly
professional men such as physicians, to be convicted on the word of a
woman alone. The California and Minnesota statutes expose an underlying
fear that women were likely to use the power of being listened to and
believed in the courtroom to falsely accuse, convict, and imprison men. In
an 1870 opinion, the California Supreme Court remarked with approval that
the state Legislature had "foresee[n] that physicians and surgeons might be
exposed to great peril" if the testimony of a female patient alone could
convict them of criminal abortion and had "wisely" required
corroboration. 5 The California court expressed concern for professional
men who could be harmed because of the nature of their private practice.
Women patients, perhaps all patients, were potential threats to their doctors.

Although criminal abortion cases mimicked rape cases in the way
that they cast the woman as victim, the treatment of women typical in rape

12 Act of April 16, 1850, Sec. 45, amendment approved May 29, 1861, Hittell's

Dig. Art. 1447, cited in People v. Josselyn. 39 Cal. 393, 395 (1870).

13 General Laws of the State of Minnesota 81, ch. 49 (1875).

14 Anna Clark, Women's Silence, Men's Violence: Sexual Assault in England,
1770-1845 67-69 (1987). For cases that explicitly connected rape and abortion, see
Goldnamer et al. v. O'Brien 33 S.W. 831, 831 (Ky. 1896); Cahill v. State. 178 P.2d 657,
657, 660, 664 (Okla. 1947).

15 People v. Josselyn, 39 Cal. at 399. The opinion stated:

In view of the confidential relations which exist between physicians and
surgeons and their patients, and the secrecy which necessarily exists in
the treatment of certain diseases to which females are subject, and
foreseeing that physicians and surgeons might be exposed to great peril
if criminal practices imputed to them could be sustained on the
uncorroborated statement of the patient alone, the Legislature has
wisely provided that they shall not be 'arrested, indicted, put on trial, or
convicted' of an attempt to produce abortion 'by the testimony of such
woman alone.'

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Columbia Journal of Gender and Law

cases was atypical in criminal abortion cases.' 6 When defense attorneys in
criminal abortion cases tried to denigrate the women by asking questions
regarding their sexual histories, the norm in rape cases, judges forbade the
introduction of evidence designed to malign the sexual morality of women
who had abortions.' 7 The testimony of a woman was treated as trustworthy
in one set of criminal cases and suspect in the other.

The legislative effort to force the courts to treat women who had
abortions as accomplices and require corroboration of their testimony
turned out to be nothing more than a skirmish. When Minnesota's Supreme
Court reviewed an abortion case in 1875, the same year that the legislature
made it clear that women should be treated as accomplices, the court
interpreted the statute in a flexible fashion. The court decided to assume
that evidence corroborating her testimony had indeed been provided since,
the judges explained, it was not apparent in the incomplete record "that
there was no such corroborative evidence."' 8 Despite the new statute, the
court upheld the conviction of Jay Owens for providing the "noxious"
medicines used to induce a miscarriage.' 9

Why did nineteenth-century jurists, who might be expected to share
the attitudes toward women held by other men of their class, treat the
aborting woman differently? The judiciary faced a quandary of ideology
versus the practicality of enforcing the criminal abortion laws. In the end,
the higher courts facilitated the successful prosecution of criminal
abortionists, an outcome that meshed with the intention of mid-nineteenth-
century criminal abortion legislation. As the New York judges remarked in
an 1889 opinion, the question of whether the woman who had an abortion
was a victim or an accomplice, was "too well settled by authority, and too
salutary in practice to now be questioned."2° She was a victim. This
counterintuitive interpretation of women's role in abortion was "salutary":
it made winning convictions in abortion cases possible. The benefits of

16 When women complained of rape, their own narratives were rejected and legal

tradition allowed them to be transformed from victims into vamps who sought sex. See
Clark, supra note 14; Mary E. Odem, Delinquent Daughters: Protecting and Policing
Adolescent Female Sexuality in the United States, 1885-1920 65-70 (1995); Charles P.
Nemeth, Character Evidence in Rape Trials in Nineteenth-Century New York: Chastity and
the Admissibility of Specific Acts, 6 Women's Rts. L. Rep. 214-25 (Spring 1980); Karen
Dubinsky, Improper Advances: Rape and Heterosexual Conflict in Ontario, 1880-1929 22-
32 (1993).

17 People v. T. Wah Hing 114 P. 416 (Cal. Ct. App. 1911); Meno v. State, 83 A.
759, 760-61 (Md. 1912).

18 State v. Owens 22 Minn. 238, 244 (1875).

19 Id. at 239.

20 People v. Vedder, 98 N.Y. at 632.

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such a rule to the state's case legitimated the rule. The Minnesota Supreme
Court expressed the same view in 1894. "As a first impression," the court
admitted, "it may seem to be an unsound rule that one who solicits the
commission of an offense, and willingly submits to its being committed
upon her own person, should not be deemed an accomplice .... But in
cases of this kind the public welfare demands the application of this rule.'
By the end of the nineteenth century, appellate courts in virtually every
state adopted the convenience of treating women who had abortions as
victims in criminal cases and affirmed these rulings throughout the
twentieth century.22

Yet the question of whether women were victims or accomplices in
abortion continued to arise when women themselves or their families
brought suits against practitioners who botched an abortion and/or
individuals who arranged them. That some women sued their own
abortionists for malpractice challenges some common-place assumptions
about women and abortion in the years before Roe v. Wade.23 This set of
cases suggests, first, that women were neither as embarrassed nor as
silenced about their sexual and reproductive behaviors as many assume,
and, second, they did not fear the law. In these civil cases, women and their
family members deliberately entered the legal arena, made illegal abortions
public, and expected the legal system to aid them at a time of injury or
death. Even in states where women could be prosecuted for having
abortions, women brought cases against their illegal abortionists. 24 Women
and their relatives expected not only competent care when they engaged an
abortionist, but, if their abortion provider proved to be unskilled, they
assumed they had recourse in the courts. Their victories in court show they
were right. Juries granted awards ranging from $200 to $8,000.25 The

21 State v. Pearce, 57 N.W. 652, 653 (1894).

22 For cases that affirmed that women would not be treated as accomplices, see

Wharton, supra note 3, at 1010-11; Wigmore, supra note 8, at 338-39.

23 410 U.S. 113 (1973).

24 New York, New Hampshire, Wisconsin, Minnesota, Indiana, Arizona, and Idaho

state statutes included punishments for women who had abortions. Mohr, supra note 1, at
133-34, 140, 218, 222-23, 227, 229. A 1934 survey found that punishment for women
ranged from fines of $100 to $1,000, and incarceration for thirty days up to ten years. Some
states had specific language regarding the women who had abortions, many others relied on
common law precedents to determine possible punishments, and in a few there was no
punishment at all for the woman. See Thomas E. Harris, Statutes Relating to Abortion, in
Frederick J. Taussig, Abortion, Spontaneous and Induced: Medical and Social Aspects App.
A, at 453-75 (1936). For examples of women who consented to abortions in states where
they could conceivably be prosecuted themselves, and yet brought suits against their
abortionists, see Miller v. Bayer 68 N.W. 869 (Wis. 1896); Gunder v. Tibbits, 55 N.E. 762
(Ind. 1899); Nash v. Meyer 31 P.2d 273 (Idaho 1934).

25 Juries found for the plaintiff and gave money awards in twelve cases; the rest of

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318 Columbia Journal of Gender and Law [Vol. 10:2

average award in these abortion suits ($3,250) was comparable to awards
granted in other medical malpractice cases. 6 At least twenty-three damage
suits were appealed to higher courts27 and hundreds more may have been
brought and settled without ever reaching trial.28

The majority of these suits was against doctors. Of twenty cases in
which the abortionist was sued, thirteen were identified as physicians; one
was a chiropractor; the occupations of the rest are unknown.29  The civil
suits for injuries and deaths related to abortion were part of a general
expansion in suits for malpractice.30 Since physicians played an important

the appellate cases either never went to jury or were directed verdicts for the defendant. The

amount of money awarded was reported in nine cases.

26 A study of over 400 malpractice cases appealed between the Civil War and

World War I found a similar range of awards; most jury awards for malpractice were
between $1,000 and $5,000. Charles J. Weigel, II, Medical Malpractice in America's
Middle Years, 32 Tx Rep. on Biology & Medicine 194-95 (Spring 1974).

27 For a list of the civil suits, see Appendix. I provide numerical breakdowns of

the suits for the interested reader, but they are not from a random sample and should not be
treated as representative of all abortion-related civil suits or the practice of abortion. Civil
suits often included more than one defendant. Of the twenty-three cases, the abortionist was
sued in twenty cases, the woman's male lover in eight cases, the parents of the man in two
cases, the woman's rapist in one, and one other. In thirteen of the twenty-three cases the
woman lived. Of these, ten were brought by women themselves (married and single), two by
fathers on behalf of minor daughters, and one by a husband. Ten cases sought damages for
the wrongful death of a woman due to an illegal abortion; these were brought by family
members or administrators on behalf of husbands and children. Appeals were brought by
both plaintiffs and defendants. In twelve cases, the physician-abortionist or other defendant
appealed a jury decision awarding damages; in nine cases, the plaintiffs appealed a directed
judgment for the defendants; and in two cases lower courts asked for clarification on how to
handle this type of case.

28 There is no way to know how many other cases were brought at lower levels or

how they fared. One conventional estimate is that for every malpractice case that reached an
appellate court, one hundred other suits were initiated, which may have been won, but never
moved up through the courts. Andrew A. Sandor, The History of Professional Liability Suits
in the United States, 163 J. A.M.A. 459, 464 (1957). Lawrence Friedman points out that
only a small percentage of civil cases ever went to trial, but the pervasive (though
exaggerated) belief that juries would grant large awards put pressure on defendants to settle
out of court. See Lawrence M. Friedman, Some Notes on the Civil Jury in Historical
Perspective, 48 DePaul L. Rev. 201 (1998).

29 In six cases the abortionist's occupation is unknown. Sixty-five percent of the

abortionists sued were doctors; if the doctors and chiropractor are added together, seventy
percent were health care professionals.

30 The large number of abortion-related civil suits in the 1920s and 1930s fits with
the general history of medical malpractice. A study of appellate cases concerning medical
malpractice between 1900 and 1955 shows a peak during the mid-1920s through the mid-
1930s. Sandor, supra note 28, at 460 (see graph). On the history of medical malpractice, see
Chester R. Bums, Malpractice Suits in American Medicine Before the Civil War, 43 Bull.
Hist. Med. 41 (1969); Weigel, supra note 26, at 191-205; James C. Mohr, Doctors and the



Victim or Accomplice?

role in providing abortions throughout the era of illegal abortion in the
United States, despite the law and the American Medical Association's
prohibitions of it, their appearance in this type of suit makes sense. Rather
than using the number of cases as some sort of rough measure of actual skill
among competing practitioners, the willingness of Americans to sue doctors
for badly performed illegal abortions should be read as an indication of
Americans' high expectations of doctors. Twentieth-century Americans
believed in the skills of the medical profession; when doctors proved to be
unskilled, careless, or neglectful, they felt betrayed and justified in going to
the law to exact punishment.3

Women or their families brought complaints against abortion
providers to court in search of reimbursement for the costs of emergency
medical care or funeral services, and for damages. In doing so, they
attempted to legalize the customary practices of the extra-legal world.
Nineteenth- and twentieth-century abortionists typically refunded fees when
abortion procedures failed and reimbursed the costs of hospitalization. In
the case of fatal outcomes, abortionists covered funeral expenses and
more. 2 These practices served as insurance for the abortionists: taking
financial responsibility for bad outcomes might convince women and their
relatives to abandon or avoid investigations and prosecution. Yet they also
grew out of patient expectations. In 1935, for example, one Chicago man,
on the advice of his mother, returned to the office of the physician-
abortionist who had operated on his lover, where he explained to the doctor
that she was in the hospital, and told him, he reported, that "I wanted some
of that money back to pay for the hospital bill. 3  They argued, but the

Law: Medical Jurisprudence in Nineteenth-Century America, ch. 8 (1993); Kenneth Allen
De Ville, Medical Malpractice in Nineteenth-Century America: Origins and Legacy (1990);
Neal C. Hogan, Medical Malpractice in the Twentieth Century (forthcoming dissertation,
Harvard University).

31 On the growing respect of the public toward the medical profession (and the
expanding claims of the profession) in the late nineteenth and twentieth centuries, see
Ronald L. Numbers, The Fall and Rise of the American Medical Profession, in Sickness and
Health in America: Readings in the History of Medicine and Public Health, 225-36 (Judith
Walzer Leavitt & Ronald L. Numbers eds., 3d rev. ed. 1997); John C. Burnham, American
Medicine's Golden Age: What Happened to it?, in Sickness and Health in America, id. at
284-94.

32 For a physician-abortionist who refunded fees and paid for hospital care if

needed, see Ed Keemer, Confessions of a Pro-Life Abortionist 144 (1980). For a midwife-
abortionist who gave the husband of her deceased client money to cover funeral costs and the
cost of providing care for his infant child, see Inquest on Margaret B. Winter, November 13,
1916, case 274-11-1916, Medical Records Department, Cook County Medical Examiner's
Office, Chicago, Illinois. For a physician who offered to pay funeral costs, see People v.
Schaffner, 46 N.E.2d 989, 992 (Ill. 1943).

33 Testimony of Stephen Zakes in Inquest on Mary Nowakowski, April 4, 1935,
case 80-5-1935, Medical Records Department, Cook County Medical Examiner's Office.

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Columbia Journal of Gender and Law

doctor finally agreed to the man's demands and told him, "I will pay for
everything. '34 The families that brought suits to cover emergency-related
expenses no doubt tried informal routes first; the practitioners who ended
up in court had failed to live up to pre-existing community standards.

But could someone sue for harm resulting from an illegal abortion?
Would the courts allow such cases to be brought when the woman who had
an illegal abortion had, by definition, broken the law herself and
participated in a crime? Throughout the century of illegal abortion, the
courts divided into two camps on the question. Some courts concluded that,
as in criminal cases, the woman who had an illegal abortion was a victim
and, thus, damages could be sought; others treated her as an accomplice
who had consented to the crime of abortion and rejected these suits." The
judiciary's opposing rulings regarding the legitimacy of these civil suits is
not easily explained.

There is no moment when the courts as a whole ruled one way, and
then changed their interpretation and ruled another. Instead of change over
time, there is continuity: the judiciary consistently disagreed over the
appropriate response to this type of case. In nearly every decade from the
late nineteenth century up to 1970, judges reached opposing conclusions
about the validity of civil suits for injuries resulting from illegal abortion.
Whether the aborted woman survived the procedure or died does not clarify
contradictory outcomes. Even when the woman was deceased and would
seem to be a clear victim, the courts disagreed.36 Regional differences do
not explain differing legal rulings either; every region of the country was
split, though the Midwest was somewhat more willing to permit civil suits
for abortion and the South less SO. 7

A number of courts adhered to the principle that prohibited a

34 Id.

35 The states split almost equally on whether or not suits for damages arising from
an illegal abortion were permitted. Of the twenty-three damage cases involving abortion,
appellate courts permitted suits in fourteen cases and declared that suits could not be brought
in nine cases. Appellate courts ruled on civil suits following illegal abortions in nineteen
jurisdictions: in ten states the courts determined that the woman or her family could sue for
damages; in eight states and the District of Columbia higher courts prohibited such suits.

36 Of the twenty-three appellate cases, the woman survived her abortion in thirteen
cases; the courts permitted suits in seven cases and rejected suits in six cases. In the ten
cases when the woman had died as a result of her abortion, seven were permitted, three were
not.

37 State courts in all regions addressed the question of whether civil suits could be
brought in illegal abortion cases. Only two cases were from western states; the rest were
evenly divided among the East, South, and Midwest. In the Midwest, five states permitted
suits and one did not; in the East, two states permitted suits, two did not; in the South, two
states permitted suits, five jurisdictions did not; in the West, one state permitted suits, one
did not.

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participant in criminal activity from using the legal system to seek damages
for any resulting harm. In reviewing an 1896 case, the Kentucky Supreme
Court declared that, "the party consenting to the injury can not profit by his
wrongful act.... [I]f the plaintiff voluntarily went to Louisville" to have an
abortion performed, then the woman could not sue.38 When Dr. M. Hunter
of Washington, D.C. lost a malpractice suit brought by a patient for whom
he performed an abortion in 1920, he appealed, arguing that his patient had
no legal right to seek damages for the results of an "illegal contract., 39 The
Appeals Court of the District of Columbia concurred. Although the woman
who had an abortion was not considered "criminally liable" or an
accomplice, the court observed that this was not necessarily true in civil
law. 40 The aborted woman's role as a "victim" in criminal abortion cases,
the court ruled, did not mean she could escape "the legal consequences" of
her "illegal or immoral acts." 41 "It has long been the law," the court
declared, "that, where an action is founded upon an unlawful contract, the
court will not interfere. 42

This strict reading of tort law in abortion cases conformed to
nineteenth-century judicial thinking, which made it difficult for individuals
to sue and win damage awards. The doctrine of contributory negligence
kept many claims from ever going to a jury at all. The general rule was,
Lawrence Friedman explains, "if the plaintiff was negligent himself, ever so
slightly, he could not recover from the defendant." '43 In keeping with this
standard, about half of the appellate courts faced with a case of this type
noted the participation of the woman in the crime of abortion, and rejected
the suit.

Nonetheless, many courts reached the opposite conclusion and
decided that it was not in the public interest to allow practitioners who
botched abortions and caused fatalities or injuries to avoid civil suits.
These courts made an exception to the usual rule forbidding the participants
in an illegal act from using the legal system to recover damages in cases
when "the public peace or the life of a participant in the wrongful act is

38 Goldnamer et al. v. O'Brien, 33 S.W. at 832. See also Laroque v. Conheim, 42

Misc. 613 (N.Y. Sup. Ct. 1904); Szadiwicz v. Cantor, 154 N.E. 251 (Mass. 1927).

39 Hunter v. Wheate, 289 F. 604, 605 (D.C. Cir. 1923).

40 Id.

41 Id. at 606.

42 Id.

43 Lawrence M. Friedman, A History of American Law 470 (2d ed. 1985). See
also Christopher L. Tomlins, Law, Labor, and Ideology in the Early American Republic 302-
04, 341-84 (1993); G. Edward White, Tort Law in America: An Intellectual History (1980).

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Columbia Journal of Gender and Law

involved." Maine, for example, allowed the awarding of damages for
negligence in illegal abortion cases. In a 1917 case, the state's Supreme
Court upheld a jury award of $881.58 in damages for the costs of one
woman's hosvitalization, nursing, and the "anxiety and distress" it caused
her husband.4 This woman had become infected as a result of the abortion
operation and, after four weeks of futile care by her abortionist, was
hospitalized. There, she endured ten operations in seven weeks; six months
later she had only partially recovered from the ordeal. The damages, the
court concluded, could not be considered "excessive." '

Judges who permitted such suits relied upon an interpretation of the
law put forward in an 1879 treatise by the eminent Michigan jurist, Thomas
M. Cooley. In his explication of tort law, Cooley contended that the state
"is wronged" by a "breach of the peace . . . and forbids it on public
grounds."' 7 In cases where physical injury resulted, showing consent on the
part of the injured could not be used as a defense for no one may consent to
a battery or their own killing. "If men fight, the State will punish them. If
one is injured, the law will not listen to an excuse based on a breach of the
law. '"48 Thus a man injured in a duel, which was illegal, might sue the other
for damages.4 9 Cooley did not specifically address abortion, but judges in
several states relied upon the general principles outlined by Cooley to
permit civil suits for damages caused by illegal abortions.50 The fact that a
woman had consented to an illegal operation, they concluded, did not
exempt the operator from a civil suit for wrongful death or malpractice.

Where suits were allowed, a physician's agreement to perform an
abortion was treated as a contract between physician and patient and the
physician was expected, in this procedure as in all others, to practice with

44 Milliken v. Heddesheimer 144 N.E. 264 (Ohio 1924); see also Martin v.
Hardesty 163 N.E. 610 (Ind. App. 1928).

45 Lembo v. Donnell, 101 A. 469, 470 (Me. 1917).

46 Id.

47 Thomas M. Cooley, A Treatise on the Law of Torts or the Wrongs which Arise
Independent of Contract 163 (1879). In the original, the first phrase quoted follows the
second. On Cooley, see Friedman, supra note 43, at 372, 628-29.

48 Cooley, supra note 47.

49 Cooley, supra note 47, at 162-63. In states that dismissed this reasoning, the
woman's consent to abortion ensured that civil suits for damages after an abortion would be
thrown out automatically. A number of courts that rejected civil suits in abortion cases cited
Francis H. Bohlen, Consent as Affecting Civil Liability for Breaches of the Peace 24
Colum. L. Rev. 819 (1924).

50 For references to Cooley, see Milliken v. Heddesheimer 144 N.E. at 266-67;

Martin v. Hardesty, 163 N.E. at 611; Joy v. Brown 252 P.2d 889, 891 (Kan. 1953).

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skill and to care for his patient. In the late 1920s, for example, an Indiana
jury awarded $5,000 to the widower and three young children of Mrs.
Arretta Hardesty in a suit brought against Dr. John T. Martin. 5' Dr. Martin
had performed an illegal abortion and "by reason of his negligence and lack
of skill, in failing to wash his hands and sterilize the instruments used, his
treatment resulted in the death of the patient. 5 The Indiana Appellate
Court ruled that suing was permitted and upheld the award. 53 Even in an
illegal operation, ordinary citizens, as represented by the jury, and eminent
judges considered it reasonable to expect that a physician who undertook an
operation would have the skills necessary to do so and would conform to
the medical standards of the day. By the 1920s, Americans expected
doctors to follow the rules of aseptic procedure or face financial penalties.

Some states managed to adopt the legal principle that prohibited
civil suits arising out of illegal activities, yet nonetheless permit suits in
illegal abortion cases. Negligence in performing the abortion was not
actionable, the Washington Supreme Court announced in 1931, but the
doctor's actions after the abortion could be scrutinized and subject to
malpractice claims. 54 "A physician and surgeon has no more right," the
opinion announced, "to abandon his patient under such circumstances than
.. under ordinary circumstances. 55  The civil suit went forward.

Abandoning injured or dead patients was, of course, exactly what some
abortionists who feared arrest did. This neat distinction gave courts a way
to abide by the rule to refuse to aid criminals while simultaneously aiding
the relatives of women who were killed by incompetent and careless
abortionists. In 1948, Minnesota adopted the same reasoning for handling
cases of wrongful death by abortion.56

The disagreement about how to handle cases charging negligent
performance of an abortion or wrongful death caused by an abortion was
not resolved in the postwar period. As more than one judge realized, "the
authorities . . . are about evenly divided on the question" of whether civil
suits and recovery of damages for illegal abortion should be barred or
permitted.57 After exhaustive review of the existing case law, in 1953 the

51 Martin v. Hardesty, 163 N.E. at 610.

52 Id.

53 Id.

54 Androws v. Coulter I P.2d 320 (Wash. 1931).

55 Id. at 321. Abandoning a patient violated basic expectations of physicians and
physicians who did so were held liable. Weigel, supra note 26, at 200.

56 True v. Older, 34 N.W.2d 700 (Minn. 1948). Whereas, Androws v. Coulter, 1

P.2d 273, was unanimous, the Minnesota case included a dissenting opinion.

57 Wolcott v. Gaines, 169 S.E.2d 165, 166 (Ga. 1970).

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Kansas Supreme Court concluded that a woman could bring a suit against
her abortionist for negligence or the next of kin could sue in the event of a
woman's death.58 Indeed, the Kansas court felt "no hesitancy" about
declaring that if the deceased Joy M. Joy had lived, she could have brought
a suit for negligence herself 5 9 Certainly, her relatives, on behalf of her six-
year-old daughter, could sue for wrongful death.6" Yet, a year later the
Illinois State Supreme Court reached the opposite conclusion.6' In 1970,
the Georgia Supreme Court reviewed case law on the question and
concluded, as had the Kansas court, that civil suits following illegal
abortions were allowed.62 The Kansas and Georgia decisions permitting
women or their relatives to sue for damages in illegal abortion cases fit with
the period's general trend toward making it easier for people to bring
malpractice suits and coincided as well with the emerging movements for
abortion law reform.63

Underlying the opposing responses to malpractice and wrongful
death suits for abortion are implicit theories about the methods for deterring
crime. On the one hand, judges who refused to allow women or their
surrogates to sue incompetent abortionists may have hoped to send a
message to women who might have abortions: the abortion market was
unregulated, they could be seriously injured or even killed if they chose to
have an illegal abortion, and the state would show no leniency toward them.
Suits to cover the costs of medical care, funerals, or lost services would not
be permitted. Women who had abortions were on their own, and if they
were hurt it was just punishment for their illegal and immoral behavior. If
women realized the dangers, perhaps they would stop demanding abortion.

On the other hand, the strategy of permitting suits put pressure on
the supply side of illegal abortion and prioritized high standards of medical
care. When judges permitted these types of suits to be argued in court and
go to jury, they warned all physicians and others who performed abortions
that they could be held liable for their practices. The threat of criminal and

58 Joy v. Brown, 252 P.2d 889 (Kan. 1953).

59 Id. at 893.

60 Id.

61 Castronovo v. Murawsky 120 N.E.2d 871 (Ill. App. Ct. 1954).

62 Wolcott v. Gaines. 169 S.E.2d 165.

63 On trends in malpractice cases, see Hogan, supra note 30. On the movements for

abortion law reform, see David J. Garrow, Liberty and Sexuality: The Right to Privacy and
the Making of Roe v. Wade (1994); Rosalind Pollack Petchesky, Abortion and Woman's
Choice: The State, Sexuality, and Reproductive Freedom ch. 3 (rev. ed. 1990); Gordon,
supra note 2, at 397-409; Kristin Luker, Abortion and the Politics of Motherhood chs. 3 & 4
(1984).

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civil suits might convince more marginal practitioners to refuse to perform
abortions. If abortionists were ordered to pay hundreds or thousands of
dollars in damages for their negligence, perhaps more of them would seek
additional training, take care to sterilize their instruments, use penicillin and
antibiotics, and attend to their patients when something went wrong with
the procedure. (In fact, many abortionists did all of these things.)6 Relying
on court cases alone though, whether civil or criminal, to insure good
medical practice is an imperfect method of regulating medical competence,
especially for an illegal procedure. Not everyone would have the ability to
bring suit and suits could only be brought after the damage had been
done-perhaps only after a fatality.

The conflicting answers to the question of whether suits could be
brought against negligent abortionists drew on different philosophies of the
relationship between the state and its citizens and different attitudes towards
women and their sexual behavior. The group of judges that favored
allowing suits, it may be argued, placed high value upon the protection of
the lives and bodies of citizens. Judges who identified with the Cooley
analysis of tort law made protection of the citizenry paramount and refused
to protect criminals by granting them a simple defense in abortion cases.
They were apparently less concerned with punishing women for their illicit
sexual behavior and abortion practices. The group that prohibited suits
believed that allowing damages in cases where someone had participated in
and consented to an illegal operation would weaken the criminal law.
These jurists took a tough attitude toward actual victims of abortion-
women killed or injured as a result.

Yet opposing legal theories do not fully explain the division within
the judiciary about whether or not suits could be brought for injuries caused
by illegal abortions. In these cases, jurists articulated their views about
gender as well as legal principles. When the rulings on civil suits for
abortion are compared according to the marital status of the women who
had abortions, the results are startling. The courts tended to reject civil suits
that involved married women who had abortions and to permit suits that
involved unmarried women. The marital status of the woman is known in
twenty civil cases. When the woman was married, nearly two-thirds of the
courts decided that no civil suit could be brought.65 When the woman was
unmarried, however, the reverse was true. In over three-quarters of the
cases concerning single women, the courts upheld the right of women or
their families to sue for damages following an illegal abortion.'

64 Reagan, supra note 2, ch. 5.

65 Five of eight cases.

66 Ten of thirteen cases. Although more married women than unmarried had

abortions, of the women who were the subject of these civil suits, thirteen were unmarried,
eight were married, and two were of unknown marital status. The greater number of
unmarried women in these civil suits may indicate that unmarried women went to worse

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Columbia Journal of Gender and Law

In the civil law, higher courts echoed the anti-abortion campaign's
hostile attitude toward married women by rejecting most suits involving
married women. The courts pointed to the immorality of married women
who evaded the duties of motherhood by having abortions. For example,
when Mrs. Pearl L. Wheate, mother of a twelve year old, sued Dr. Hunter
for malpractice following her abortion in 1920, the jury concluded that the
doctor was negligent and awarded Mrs. Wheate damages. 67 Dr. Hunter
appealed. The Washington, D.C. Appeals Court overturned the case.
Mixed in with the commentary on contracts and legal tradition was another
discourse on female sexual and reproductive behavior. Mrs. Wheate, the
jurists explained, had "engaged, not only in an unlawful act, but also in one
which was immoral." 68  The Tennessee Supreme Court used similar
language to describe a married woman who sued her doctor for damages
resulting from her third abortion by him.69 Mrs. Agnes L. Martin, the
Tennessee court observed, was "a matured married woman, who well knew
the serious consequences likely to result from such an operation, and that it
was both illegal and immoral. . . . [S]he is entitled to no relief."7

' A
Virginia jury in the 1940s saw fit to award damages of $8,000 for the death
of Mrs. Kerneda C. Bennett following an abortion.7' On appeal, however,
the Virginia Supreme Court agreed that the suit could not be brought
because the deceased, "was guilty of moral turpitude and participated in the
violation of a general anti-abortion statute. 72  The Virginia court's

abortionists or that parents and seduced daughters felt more need to seek vengeance (of
abortionists and unmarried men) through the courts.

The finding that the courts continued to treat unmarried women with sympathy is
in marked contrast to the courts' increasing doubt about single women who claimed to be
victimized by men in seduction and breach-of-promise suits at the turn of the century. On
the history of breach-of-promise and seduction suits, see Grossberg, supra note 10, ch. 2;
Jane E. Larson, Women Understand so Little, They Call My Good Nature 'Deceit': A
Feminist Rethinking of Seduction, 93 Colum. L. Rev. 374, 393-96 (1993). Constance
Backhouse finds that the Canadian judiciary also disliked seduction suits, though juries
regularly awarded damages. Constance Backhouse, The Tort of Seduction: Fathers and
Daughters in Nineteenth Century Canada, 10 Dalhousie L.J. 45 (1986).

67 Hunter v. Wheate, 289 F. 604.

68 Id. at 609. Indeed, Mrs. Wheate appeared to the court to be "neither reluctant nor

unwilling to have the operation." Id. at 607.

69 Martin v. Morris, 42 S.W.2d 207 (Tenn. 1931).
70od. at 207.

71 Miller v. Bennett, 56 S.E.2d 217, 218 (Va. 1949).

72 Id. at 221. The Virginia Supreme Court, which reviewed the case law and saw
that it was contradictory, buttressed its decision by remarking that "the better reasoned
cases" prevented damages in this type of case. Id. at 220. On Coffman's conviction in an
associated criminal case, see Coffman v. Commonwealth 50 S.E.2d 431 (Va. 1948).

326 [Vol. 10:2



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conclusion, as in the Tennessee and D.C. decisions, was not based on law
alone, but on the character of the deceased woman in whose name the suit
was brought. In rejecting these suits, the courts confirmed that it was a
married woman's duty to bear children; an abortion could not be pardoned.

In contrast to their response to suits involving "immoral" married
women, appellate rulings showed sympathy for suits brought by or on
behalf of unmarried women who had been hurt by illegal abortions. The
more lenient response to single women reflected widespread feeling that
unmarried women who became pregnant deserved understanding. Unlike
married women who had no excuse for avoiding motherhood, unmarried
women and their illegitimate children would be stigmatized for life. From
the late nineteenth century to the late twentieth century, American society
tended to regard single women who became pregnant and had abortions as
victims of irresponsible men who failed in their duty to marry their pregnant
lovers. Turn-of-the-century newspapers portrayed unmarried women who
had abortions as victims of male villains who had seduced and abandoned
them. Although this portrait is a Victorian one, it continued well into the
twentieth century. Even in the 1960s physicians and reformers expressed
sympathy for the difficulties faced by pregnant single women.73

Several turn-of-the-century civil suits for damages following an
abortion highlighted the sexual vulnerability of unmarried women. These
suits reveal that the association between male sexual abuse and abortion
was real for some unmarried women and their families. In six cases,
women intertwined their complaints of injuries due to abortion with rape
and seduction charges.74 In these cases, women presented themselves as
victims of the men who impregnated them and as victims of abortion. A
rare suit revealed a man using violence to force a woman to undergo an
unwanted abortion,75 but most of the suits brought by unmarried women
against men indicate more subtle forms of coercion. The men urged and
arranged an abortion after having first encouraged (or sometimes forced)
young women into sexual relationships. Male pressure combined with fear
of social denunciation for single motherhood made women feel they had no
option but to go along with an abortion. The women sued the men who put

73 For an excellent analysis of the Victorian construction of female sexual danger,
see Judith R. Walkowitz, City of Dreadful Delight: Narratives of Sexual Danger in Late-
Victorian London (1992); on single women, seduction, and abortion, see Reagan, supra note
2, chs. 2 & 8; on sympathy toward unmarried, pregnant women in the early nineteenth
century, see Mohr, supra note 1, at 86-89.

74 Goldnamer v. O'Brien 33 S.W. 831; Miller v. Bayer 68 N.W. 869; Courtney v.
Clinton 48 N.E. 799 (Ind. App. 1897); Gunder v. Tibbits 55 N.E. 762; Larocque v.
Conheim, 42 Misc. 613; Herman v. Turner 232 P. 864 (Kan. 1925).

75 True v. Older 34 N.W.2d 700. The court stated that one man "by means of
threats of bodily harm and refusal to marry her... compel[led]" his lover to go with him to
an abortionist. Id. at 702.

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Columbia Journal of Gender and Law

them in this difficult position. This set of cases is further evidence of the
disarray and confusion about changing heterosexual courting norms at the
turn of the century. 6

That unmarried women and their relatives brought these cases
demonstrates their confidence that the community would feel as outraged
by male deception and sexual misbehavior as they did. These turn-of-the-
century civil suits coincided with reform movements that sought to punish
men for their sexual exploitation of young women by passing laws against
"white slavery" and statutory rape." The pursuit of these civil cases
following illegal abortion suggests a popular effort to make it more risky for
the male lovers of young women to enjoy sexual pleasures and then use
abortion to avoid the responsibilities of marriage and fatherhood. Appellate
courts evidently concurred with popular sentiment; in most of the cases
brought against men who impregnated an unmarried woman and then urged
the abortion, the courts permitted the suit.78 An unlucky man who was
responsible for an unmarried woman's pregnancy and abortion could find
himself arrested, jailed, and prosecuted by state authorities for violating the
criminal law on abortion, and then sued in civil court by his sweetheart or
her relatives.79

The suits of single women underscore the vulnerability of women
who worked as domestic servants and lived in the homes of their
employers."' In her suit, Dora Troxell pictured herself as an orphaned
seventeen year old who worked as a servant in the home of her seducer, an

76 Many of the women in unwed mothers' homes in this period had believed their
lovers' promises of marriage. Joan Jacobs Brumberg, 'Ruined' Girls: Changing Community
Responses to Illegitimacy in Upstate New York, 1890-1920, 18 J. Soc. Hist. 251-52 (1984).
Regina G. Kunzel analyzes the changing narratives of unmarried mothers and their
experiences in maternity homes in Fallen Women, Problem Girls: Unmarried Mothers and
the Professionalization of Social Work, 1890-1945 (1993). On dating patterns, see Kathy
Peiss, Cheap Amusements: Working Women and Leisure in Turn-of-the-Century New York
(1986).

77 See Ruth Rosen, The Lost Sisterhood: Prostitution in America, 1900-1918
(1982); Odem, supra note 16

78 Six of eight cases. Juvenile court probation officers and judges were also

sympathetic to suits brought against men responsible for the out-of-wedlock pregnancies of
young women. Odem, supra note 16, at 51-52, 141, 154.

79 On the criminal prosecution of the male lover, see Reagan, supra note 4, at
1260-62.

80 In three of six abortion/seduction cases, the woman had worked as a domestic

and been seduced by either her employer or the family's son. The woman was identified as a
servant in Gunder v. Tibbits, 55 N.E. 762, Courtney v. Clinton 48 N.E. 799, and Herman v.
Turner 232 P. 864. On the general problem of sexual assault of domestic servants, see
David M. Katzman, Seven Days a Week: Women and Domestic Service in Industrializing
America 216-18 (1981); Odem, supra note 16, at 26, 58-59.

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Victim or Accomplice?

Indiana merchant named Gunder, whom she described as "a man of mature
age, married, of wealth and high social position.' Gunder seduced her in
March 1892 and "continued to debauch her" until 1895.82 Twice the young
woman got pregnant and twice he took her to his physician, Thomas C.
Kimball, who told her that she would die unless she had an abortion. She
submitted to two abortions. She later took the men to court for seduction,
for the injuries and medical bills following the abortions, for loss of
reputation, and for her inability to work and earn a living. The jury
awarded damages of $5,000. The Indiana Supreme Court showed no mercy
to the defendants. Gunder was responsible for his "continuous course of
fraud and deceit., 83 Dr. Kimball had used his medical skills to perform two
abortions not to preserve his patient's life, but to protect a man's reputation.
The award, the court concluded, was fair. To emphasize that point, the
opinion ended by quoting a California decision that upheld an award of
$25,000 in a seduction case."

At least one woman tried to use an abortion suit to secure child
85support. Her attempt matched what other unmarried and pregnant young

women did in turn-of-the-century United States and Canada: they and their
parents turned to seduction and statutory rape suits in the hope of forcing
men to marry or to provide financial support for illegitimate children.86 The
Indiana woman sued for damages for an attempted abortion that had failed
to end her pregnancy and instead caused her to bear "a bastard child. 87 She
had been a domestic servant in the Courtney family and, after agreeing to
marry the son James, she "yielded to his desires" in the summer of 1894.
When she discovered herself pregnant, her lover refused to marry, and his
family arranged for an abortion. After first trying medicines, the abortionist
operated on her three times unsuccessfully. Her suit complained of having
"suffered great bodily pain and humiliation" and of lasting injury to her

81 Gunder v. Tibbits 55 N.E. at 763.

82 Id.

83 Id. at 766.

84 Id. at 768. Furthermore, the Court determined that it did not matter "whether

abortion, or seduction, or breach of promise is the name of the action.., it is simpler to say
that the action is for the damages resulting from the various consequences of one continuous
wrong." Id. The remark not only points to the importance of social considerations, but
underlines my argument that the law was not fixed but always in the process of creation.

85 Courtney v. Clinton, 48 N.E. 799.

86 Odem, supra note 16, at 51-52, 57-58; Dubinsky, supra note 16, at 21, 74-76.

87 Courtney v. Clinton, 48 N.E. at 799.

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Columbia Journal of Gender and Law

health.8" The jury awarded her $3,500. Her ex-lover appealed.
The jury apparently sympathized with the jilted woman and her

need for funds as a single mother, but the Appellate Court of Indiana could
not overlook her sexual impurity. An unmarried woman could not be sure
of a sympathetic audience in the court. Although judges upheld suits and
awards when convinced of male sexual exploitation, in this case, they
reacted differently. In their review, the court considered the woman's
conduct and challenged her claim of being a victim; they saw her as an
immoral and greedy woman. The Appellate Court noted that the new
mother had already sued Courtney for bastardy and accepted $300.
Furthermore, she had consented to taking medicines and to the operations.
The court questioned the injuries claimed, for the woman had taken long
walks, attended church, and appeared at parties. All in all, the judges
observed, there was reason for "much doubt" about her testimony
concerning the abortion and "much evidence [of her] ...lascivious and
lecherous conduct with ... James Courtney."89 The appellate court saw her
as a sexual actor. The court concluded that the jury's award was excessive
and granted a new trial. Yet it did not reverse earlier rulings that permitted
women who had abortions to sue.

The legal definition of the aborting woman as "victim" or
"accomplice" could not be determined simply by assessing whether she had
been physically harmed or whether she had cooperated and consented to the
crime. The judiciary's reading of whether an individual woman was a
victim or an accomplice in an abortion case depended on the type of case in
which the question arose, the interests of the state, legal principles, and
gender ideology. By the end of the nineteenth century, in criminal law,
women as a class were designated victims of abortion, regardless of their
individual injuries or behavior. Classifying the woman as victim was useful
for enforcing the criminal abortion laws. In civil law, where the courts
responded to popular pressure and had no clear guide to the state's interests,
the contradictions of gender, public policy, and legal values were most
apparent.

That citizens brought suits against incompetent abortionists and
won awards from juries suggests a popular commitment to punishing
practitioners who injured their patients, regardless of the legality of the
procedure. Appellate courts, however, split on the question of whether
women or their family members could sue for damages following an illegal
abortion. Embedded within the judicial opinions on abortion in civil law is

88 Id.

89 Id. at 801. A woman's sexual character similarly influenced the outcome of

seduction and statutory rape cases. Odem finds that when judges saw a woman as
"promiscuous," they rejected her statutory rape complaint. Odem, supra note 16, at 57; see
also Dubinsky, supra note 16, at 77-79.

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evidence of conflict within the judiciary over legal philosophy and, at the
same time, evidence of the significance of sex and gender norms in judicial
decision-making. In civil cases, from the nineteenth century to the late
twentieth, each woman was subjected to individual scrutiny and to the legal
standards and prejudices of different courts with varying outcomes. Courts
assessed the woman's marital status and sexual behavior as they deliberated
the question of whether she should be regarded as victim or accomplice.
When judges decided that civil suits were prohibited, they pointed to both
legal doctrine that refused to aid those who participated in crime and to the
sexual impropriety of the women involved. An unmarried woman was
likely to be seen as a victim and allowed to bring suit; a married woman
was likely to be seen as an accomplice and find her efforts at gaining
redress for injuries blocked. Yet, the courts were not uniformly hostile
toward women who had illegal abortions; as many higher courts permitted
suits for injuries due to illegal abortion as prohibited them. No matter how
authoritative the voice of a judicial opinion, however, the construction of
women in abortion cases was unstable, contradictory, and contested.

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APPENDIX

Civil Suits Following an Illegal Abortion

Goldnamer v. O'Brien, 33 S.W. 831 (Ky. 1896)
Miller v. Bayer, 68 N.W. 869 (Wis. 1896)
Courtney v. Clinton, 48 N.E. 799 (Ind. App. 1897)
Gunder v. Tibbits, 55 N.E. 762 (Ind. 1899)
Larocque v. Conheim, 42 Misc. 613 (N.Y. Sup. Ct. 1904)
Lembo v. Donnell,101 A. 469 (Me. 1917)
Hancock v. Hallowed, 82 So. 522 (Ala. 1919)
Hunter v. Wheate, 289 F. 604 (D.C. Cir. 1923)
Milliken v. Heddesheimer, 144 N.E. 264 (Ohio 1924)
Herman v. Turner, 232 P. 864 (Kan. 1925)
Steiskal v. Darrow, 215 N.W. 83 (N.D. 1927)
Szadiwicz v. Cantor, 154 N.E. 251 (Mass. 1927)
Martin v. Hardesty, 163 N.E. 610 (Ind. App. 1928)
Androws v. Coulter, 1 P.2d 320 (Wash. 1931)
Martin v. Morris, 42 S.W.2d 207 (Tenn. 1931)
Pleak v. Cottingham, 178 N.E. 309 (Ind. App. 1931)
Nash v. Meyer, 31 P.2d 273 (Idaho 1934)
Bowlan v. Lunsford, 54 P.2d 666 (Okla. 1936)
True v. Older, 34 N.W.2d. 700 (Minn. 1949)
Miller v. Bennett, 56 S.E.2d 217 (Va. 1949)
Joy v. Brown, 252 P.2d 889 (Kan. 1953)
Castronovo v. Murawsky, 120 N.E.2d 871 (I11. App. Ct. 1954)
Wolcott v. Gaines, 169 S.E. 2d 165 (Ga. 1970)

332 [Vol. 10:2