Abortionist, page 25
Chapter Eight
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WOMEN ON TRIAL
No one who knew Ruth Barnett in her glory days ever doubted that the abortionist was a clever woman. Yet she had not anticipated the troubles that came to her in 1951. She had not read the handwriting on the wall, perhaps because the decade following the Reno caper was professionally tranquil and remunerative for her. Ruth had become so accustomed to feeling secure in the Broadway Building that when she began to hear about the arrests of her counterparts in other cities after the war, she was likely to cluck over a colleague’s misfortunes and, at the same time, feel certain that the excellence of her own practice and connections shielded her absolutely and made her different from less well-situated practitioners. In this, Ruth miscalculated.
Had she been more of a political animal at this time, the abortionist might have paid closer attention to the news that travelled the underground circuit, the stories about old midwives who’d been performing abortions for years, middle-aged chiropractors and nurses and naturopaths like herself who had never botched a case but had nevertheless lately been subjected to the hell of arrests and front-page mug shots, trials, and incarceration. It wasn’t only in Portland that the old deal with the cops was off by 1951; all up and down the West Coast and across the country the police were moving in on abortionists who’d never lost a patient. And more often than not, the cops moved against women abortionists on the theory that it was a darn sight easier to score a conviction when the defendant was a presumptively untrained, unskilled, and unprotected female.
Ruth was aware, for example, of the recent troubles of Laura Miner, the San Diego chiropractor Rankin had strong-armed in the thirties. Back then, Miner had been netted in the California raids, but the authorities had given her immunity in exchange for testimony against Reg Rankin, and afterwards, she had been more or less allowed to resume her own abortion practice once the furor died down. For eleven years following Rankin’s trial, Laura Miner pursued her work undisturbed by the law, but in the late 1940s she was targeted early in the postwar crackdown. Through her contacts in L.A. and Oakland, Ruth Barnett heard how, in mid-September 1948, Miner and her associates, Josephine Page and Nedra Cordon (who had been with her since the Rankin days), became suspicious that their office was being watched and might be wired. The women were correct. Investigators from the San Diego D.A.’s office had been observing the office for months, using binoculars and movie cameras. They had been filing regular tallies of women coming in and out of the place. Later the police revealed, showing films in court of Miner’s clients, that they had recorded fourteen women on June 9, 1948, twenty-two on June 11th, twenty-one on June 16th, and so on. The D.A. was able to mount a successful case against Laura Miner and her associates despite the fact that no client’s death or injury was at issue, and no matter that all those present at Miner’s trial could hear for themselves the testimony of the witnesses for the prosecution—the women who’d sought abortions from Miner—that they had been brutally coerced to testify against the abortionist and her associates. In the late forties, none of this mattered, and the three women were sent to jail.
Ruth Barnett’s contacts around the country also told her in these early postwar years about the fate of women like Florence Stallworth, a fifty-two-year-old black public health nurse who had trained in the thirties at the Freeman’s Hospital in Washington, D.C. For years, Stallworth held a series of very responsible positions in hospitals in North and South Carolina, until she allegedly agreed to perform an abortion on a young black woman who didn’t have enough money to meet the fee of a doctor she’d consulted first. Doctors and other colleagues, her neighbors and minister, all of whom had known Florence Stallworth for years, lined up to testify at her trial. They spoke of her excellent character and her high level of professional competence. Her medical colleagues took pains to cast considerable doubt on the charge of abortion. But Florence Stallworth was convicted anyway and sent to prison, leaving her near thirty-year career as an effective and respected health-care provider in shambles.
The fact was, the climate in Portland that sanctioned Ruth Barnett’s arrest in 1951 prevailed around the country. In cities everywhere, politicians and police exploited the power of the exposé, the fear of a corrosive enemy within, and the widespread desire to enforce maternity in order to fuel the postwar crackdown on abortionists and on women who persisted in seeking abortions. It seemed that abortion was acceptable, albeit illegal, when people were standing on breadlines or when husbands were being shipped out to man the infantry lines and might never return. But abortion was quite another thing when the United States was glowing triumphant, the land of plenty. Under these conditions, abortions were unnecessary. They were unbecoming and unacceptable.
Looking back across the postwar landscape, one notices a marked elevation in the number of abortion trials in the decades just before Roe v. Wade. But a second look reveals that, relative to the vast number of illegal abortions performed in that era (estimates range from two hundred thousand to over one million a year), the number of practitioners prosecuted and the number of women forced to appear as witnesses against their abortionists in court was still tiny. No doubt the fact that women likely to seek abortions (or likely to be exposed in a raid) were from every socioeconomic group, were from every racial group, were pubescent to menopausal meant that, unlike participants in other criminal activities (but rather like some Prohibition era imbibers), they were not always so easily cast as the malefactors one loved to hate. In other words, many D.A.’s and police departments continued to leave abortionists alone out of a distaste for embroiling their otherwise respectable and ordinary female clients in public scandal. Moreover, many men, including powerful ones, continued to have a stake in the termination of many pregnancies and did not want to see all the abortionists run out of town, either before or during the crackdown time.
It was mostly in places like Portland (and Los Angeles, over and over again) that the authorities, needing to bolster their public image, perceived abortion busts and abortion trials as a valid ticket to that end. But what does stand out, alongside the elevated, if still modest, rate of arrests and the sensationalism in which anti-abortion activity was couched, was the special vulnerability of lay female practitioners, no matter that the violations committed by other abortionists, including male doctors, were exactly the same.
Carlson Wade, a chronicler of abortion activities in the postwar era, cited a situation in Iowa to make the same point. Two cases were brought before a court in that state. “In one abortion the defendant was a physician, offering proof that it was necessary. The court agreed with the physician and the case was dropped. In the second abortion case the [female] defendant was not a physician. While the conditions in favor of abortion were almost identical in both cases, the court filed suit against the second person and offered this reason: The defendant was not a member of the medical profession and has no right to practice medicine and no presumption is indulged under such circumstances that the act was performed in good faith and for a legitimate purpose.’ ” Wade remarked, “From the above it is clear that in many prosecutions, the court is primarily interested in who performed the operation, rather than why it was done.”
Ruth Barnett’s experiences in 1951 and throughout the decade of the fifties were exemplary in this regard. The manner of her arrest and the way she was portrayed by the press set her apart from the other—male—practitioners arrested with her in Portland. Her trial, and the trials of other female abortionists elsewhere, would be heavily spiced with the sexual flavor of gender, as well. In fact, gender differences continued through every phase of the punitive process. After the 1951 raids in Portland Ruth Barnett was the first of the abortionists to be imprisoned, and many of the men never served time at all. Dr. Harmey Dewey, for one, the elder of the two Dewey chiropractors raided on July 6, 1951, was acquitted of the abortion charge on December 7, 1951. His case, in which a woman client was brought to court to testify about the injuries she sustained at Dewey’s hands demonstrates one crucial way, in particular, that the trials of male abortionists were distinguished from those of women like Ruth.
In Dewey’s trial, a pathologist from the University of Oregon Medical School, Warren Hunter, appeared for the prosecution and testified that the woman in question (who was, by the way, named in the newspapers) had sustained injuries to her uterus that were, as he put it, “too severe for her to have done them herself.” Despite this expert opinion, Dr. Dewey was able to convince the jury that the woman had, indeed, aborted herself. His success was apparently related to the fact that he was able to produce two colleagues, Dr. James Silvas and Dr. Thomas Burke, to corroborate his claim. The woman with the torn uterus also testified. She said that Dr. Dewey had done the job and that she had never even laid eyes on Silvas or Burke so they couldn’t possibly know the facts of her case. But the jury did not buy her account. They believed the trio of practicing doctors. (Several years later, Dr. Silvas committed suicide after multiple charges of performing illegal abortions had been leveled against him.)
Things never went so well for Ruth Barnett in the courtroom as they had for Dr. Dewey, not in her first trial in the spring of 1952, nor in subsequent trials that stretched across the 1950s and deep into the 1960s. The fact was, the courtroom was no better place for an accused woman to be than the front page of the morning paper. The front page carried prosecutorial weight and conviction, although these thrusts were occasionally and temporarily muddied by the ambiguities necessarily embedded in an abortion bust. In the courtroom, on the other hand, the narratives were starkly unambiguous. The story that the prosecutor typically told about a female practitioner’s greed and lack of skill and perversity was so unambiguous that the woman abortionist rarely fought her way out from under them. Ruth never did.
Ruth Barnett’s abortion trials reveal the courtroom pattern that emerged and held steady whenever and wherever these women were on trial. The elements of the pattern were bold and fixed, and produced an effect that was both ordinary and bizarre. To begin with, the abortion cases became first-rate occasions for men—doctors, lawyers, judges, police, jury members—to gather together in a public place and affirm their right to govern women’s bodies, to define women’s rights, and to enforce women’s vulnerability. Second, Ruth’s trials (and the trials of more than fifty other women abortionists whose ordeals were matched against hers) were dramas that titillatingly pitted one woman against another—the alleged abortionist against her putative client—and milked the encounter. Finally, and not surprisingly given the first two governing elements, the whole event was drenched in sex. Wherever it occurred, the trial emerged day by day and in sum as a species of pornography, a cryptoporno show in which, in the name of the law and public morality, men invoked women’s naked bodies, their sex, and their vulnerability in a style that was both contemptuous and erotic. It is shocking to put it this way, but there is really no other way to describe what happened when men dragged women into court to account for abortion.
Ruth Barnett’s first trial, in the spring of 1952, was a fitting sequel to the lubricious extravaganza the press had dished out ten months before. In the courtroom, as was typical in these cases, the lawyers on both sides argued their cases by discrediting a female as being, paradoxically, both sexualized and not a woman. Throwing delicacy and gallantry to the winds, they relied on the principle that a female who could be sexually humiliated in public was, by definition, a useful tool, a slut, a criminal, or maybe all three.
Charles Raymond, the assistant district attorney assigned to prosecute Barnett in 1952, built his case on the back of a teenage girl, “Ann Kelly,” who had been brutally raped by her cousin and brought by her distraught parents to the Stewart Clinic for an abortion in the winter of 1950. According to Ruth, the law heard about this young girl’s ordeal as a result of her parents’ attempt to get the rapist to help pay for the abortion.
“The cost of the operation had bitten deeply into the family’s small savings,” she said. It seemed only reasonable to them, therefore, that the cousin responsible should pay at least a part. They wrote to him. But when their letters brought no reply, they decided on another tack. Safe in another state, he might ignore their pleas, but they thought he would listen to the law. The Kellys went to see the district attorney of their downstate county, explaining they sought no publicity, did not want the cousin jailed but just frightened enough to pay his share. Would the D.A. write a letter using big, official words, they wanted to know? Would he throw a scare into the rapist? Enough of a scare so the offender would rush to the post office with a money order to cover the expenses of Ann’s operation?
“The reaction to the Kellys’ request was not exactly what they anticipated. Indeed, the D.A. was interested. But his office was not a collection agency. The Kellys would have to find another means of obtaining redress. Greater issues were at stake here. The D.A. was not speaking of rape, brutal and criminal though it had been. That apparently did not concern him. No prosecution against the cousin was planned, either then or later. But the operation—abortion—was against the law. He told the Kellys [erroneously, in fact] they would be compounding a felony if they refused to divulge the details. Confused, frightened by threats of arrest and prison, the Kellys talked freely.”
What the Kellys said to the D.A. became the basis for the case against Ruth, and the ammunition Raymond carried into the courtroom, where Ann Kelly was put on the stand and made to describe, again and again in open court, the rape, the subsequent infection, the gynecological examinations (“Describe for us, Ann, how you were positioned on the doctor’s table? Were your legs raised and your knees spread wide apart?), the abortion. When the prosecution was finished portraying Ann Kelly as a pathetic victim of Ruth’s vicious abortion mill, Ruth’s lawyer stood up and characterized the girl (to Ruth’s horror) in the terms any defense lawyer on an abortion case might use in those days. Offering the jury a chance to see that the Kelly girl and not Ruth was the tainted female, he suggested the girl was “a fallen woman past redemption who should be exposed.” The jurors and the newspapermen and the ordinary citizens who filled the courtroom gazed at the prim, frail girl on the stand whose legs had been spread apart now so many times over in their minds’ eye, and they knew they had to settle on the essential identity of Ann Kelly. The identities they were to choose between were only two: the prosecutor’s version or the defense attorney’s. The way it worked, after the rape, Ann Kelly’s dignity died first in the hands of a D.A., and then again on the courthouse steps. As for Ruth, ever since the headlines of the previous July, her claim to public dignity was fatally compromised as well.
A great many of the details of Ruth Barnett’s 1952 trial have not been preserved, because although the abortionist initially appealed her conviction, she later withdrew the appeal as part of a plea bargain. As a result, no transcript of these proceedings has survived. What does remain, however, makes it clear that the Portland trial was in every way representative of other, similar proceedings of the time, and a great many transcripts of these trials have been preserved. In St. Louis, Los Angeles, Sacramento, Trenton, all over the country, such trials demonstrated a nationwide willingness to pump up the courtroom with the gaseous vapors of cryptoporno when women were on trial.
The available transcripts allow us to walk in and out of courtrooms in the 1950s and observe women abortionists on trial. What was common to all these courtrooms was an atmosphere dense with sex and smut, and with notions about women that could have stimulated misogyny in even the most generous-minded observer.
Before entering the halls of justice, it’s important to understand the broad social consensus that encouraged men to speak so loudly and with such confidence there. The fact was, when politicians and police and journalists mounted a raid on an abortionist’s chambers, they needed to arm themselves with more than the pressures of political exigency (and the often elusive search warrant). They needed a cultural sanction in the form of experts’ ideas about women practitioners and their patients that unequivocally defined those females as fodder for the restraining hand of authority. Without the cultural assumptions that supported their presence in the courtroom, stained the lawyers’ language, and shaped the entire proceedings, the trials might have played out differently indeed.
In the postwar years, the medical experts were never at a loss to describe the character of such “types” as Ruth, a naturopath and an abortionist (almost always referred to as “midwives,” no matter the particulars), or their right to ply their trade, and none of what they had to say was good. The assessments followed a different trajectory from the smear job that, for example, The Oregonian indulged in, but fit together with it nicely. Central to the assessment was the issue of “midwifery,” a tag that had, in the relatively recent past, usually conferred a legitimate distinction on a woman who looked after the gynecological and obstetric needs of other women. But by the middle of the twentieth century, in every region of the country, that distinction had shriveled and died as doctors cornered the market on providing these services. Now midwives were all but fully degraded as members of a moribund profession, and their lingering association with abortion proved it. Fueled by a combination of popular prejudice and medical dicta, all women abortionists, whether they were naturopaths, public health nurses, or chiropractors, were cast as a species of midwife and thus, by definition, as out-of-date charlatans and even sadists.
