Abortionist, page 3
Maybe the most powerful factor undermining an effective medical-legal partnership to thwart abortionists was tradition. Modern doctors insisted that abortionists—both medical men and lay practitioners—violated the physician’s professional prerogatives to minister to and monitor pregnant women. But thousands of women themselves were certain that the relatively new anti-abortion laws violated their traditional right to make decisions about their own pregnancies before the fetus “quickened.”
The notion of quickening was a venerable, woman-centered concept, long embedded in the common law. It allowed that a pregnancy could not be confirmed until the woman felt the fetus move within her body. In the days before drugstore pregnancy kits, sonograms and rabbit tests, and all the other modern methods of verifying pregnancy, the woman herself was the definitive expert. Doctors and midwives agreed that menstrual irregularity—in fact, all the symptoms of pregnancy—could be associated with conditions other than pregnancy. So traditionally, it was not until the woman reported the sensation of fetal movement that she could be declared pregnant. Consequently, an abortion in the early months of pregnancy—often treated as an operation to restore the woman’s menstrual flow by removing a “blockage”—was not considered a crime. During all of the eighteenth century and the first half of the nineteenth century, the quickening doctrine governed abortion law in the North American English colonies, and then in the United States.
Even after doctors had prevailed on legislators to make abortion a crime, many states retained the quickening doctrine by criminalizing abortion only after the woman reported movement. Oregon’s first anti-abortion statute was based on this premise. The concept of quickening was so enduring that as late as the 1930s, seven states still incorporated it into the statutory language by specifically outlawing procedures on a woman “pregnant with a quick child.”
Sometimes the issue of quickening made for enormously complicated abortion prosecutions. In the early decades of the twentieth century, for example, the state of Wisconsin had one anti-abortion statute with two distinct sections. One section made it an “offense against Chastity, Morality and Decency” to produce a miscarriage by destroying embryonic life. An individual who caused such a miscarriage was not considered to have committed an offense against a person, since an embryo—before quickening—did not have the legal status of personhood. The law indicated that the individual who caused an early miscarriage committed merely a considerably lesser offense against morality.
The second section of the statute dealt with abortion as an “Offense Against Lives and Persons.” Legislators intended for this section to be used to prosecute abortionists who caused a miscarriage in a woman carrying a “quick child.” This crime was unequivocally an act of homicide, specifically, manslaughter in the second degree.
The distinction between the two sections of Wisconsin’s anti-abortion statute was tested in 1923 by a Racine man, a Mr. A.M. Foster, who was gratified to find out that the quickening doctrine was still intact and meaningful in his state. Foster was initially convicted of manslaughter by abortion. But a year later he was able to get the judgment overturned because, he argued, there was evidence that the woman he aborted was only about seven weeks pregnant. Consequently, he had been charged under the wrong section of the statute. He had, at worse, he said, committed a crime against morality, but not one against a person.
In the end, the Wisconsin Supreme Court agreed and expressed itself this way: “Neither in popular nor in scientific language is the embryo in its early stages called a human being. Popularly it is regarded as such, for some purposes, only after it has become ‘quick’ which does not occur until four of five months of pregnancy have elapsed. It is obvious that no death of a child can be produced when there is no living child. A two month embryo is not a human being in the eyes of the law, and therefore, its destruction is an offense against morality and not against lives and persons.” Perhaps the most interesting aspect of the finding was the state Supreme Court’s semiveiled admonition to those who wanted to do away with the idea of quickening altogether. The Court wrote, “The law for obvious reasons cannot in its classifications follow the latest or ultimate declarations of science. It must for purposes of practical efficiency proceed upon more everyday and popular conceptions” when it defines the nature of crime. Most men, it concluded, can surely distinguish between a quick and a non-quick pregnancy.
The language chosen by legislators in Tennessee—a state that had, by the 1930s, revised its code to eliminate women’s traditional right to abortion before quickening—made it clear how necessary it was to address the quickening issue explicitly and with absolute clarity. That state’s law began, “Every person who shall administer to any woman pregnant with child, whether such child be quick or not….” But the evidence is plain that women continued to avail themselves of their traditional rights, however these anti-abortion statutes were phrased and however the courts interpreted them.
When abortion did become the subject of a trial in the early decades of the twentieth century, lawyers representing the accused abortionist routinely used the issue of quickening—that is, the absence of proof that the woman had recognized fetal life—to try to undermine the prosecutor’s case. If there were no proof of fetal life, there was no provable pregnancy and, therefore, no provable abortion. In many states, when lawyers carried these old, traditional claims into the twentieth-century courtroom, prosecutors and judges who knew the law inside out cringed and responded testily that such matters were irrelevant. But it was not uncommon for jurors—ordinary people who respected tradition—to take note. The typical district attorney knew all about these problems. He also knew all the other potential difficulties involved in proving that a criminal abortion had taken place. For instance, he had probably never met a woman who was looking for an opportunity to walk into a courtroom and testify about her criminal abortion. Few D.A.’s, therefore, wanted to get involved in abortion prosecution.
For years, Ruth Barnett, her predecessors, and her competitors in Portland had what Ruth called an “unwritten agreement” with the cops that set a very broad limit on how and where and by whom the abortion clinics were run: no prosecution unless there was a death. This is not to say that abortionists were never arrested unless a woman died. It was always the case that a woman lying in the city hospital, suffering the effects of a botched abortion, caught the attention of law enforcement officials. If the policemen called to her bedside by the hospital staff had reason to believe that the criminal abortion was the work of a lay practitioner, their eagerness to make an arrest might be quite keen. Some observers of the behavior of law enforcement in these years pointed out that police were especially eager to arrest a female abortionist, whether or not she had a death on her hands.
A medical man who performed abortions—on the side or for a living—was not so endangered. Certainly he was less likely to be arrested for being a known abortionist. After all, a doctor had the skills that came with medical training, so a district attorney, not eager for abortion prosecutions anyway, could reason that a doctor’s abortion work didn’t really hurt the community or put women’s lives in danger. A seasoned D.A. knew for sure that any abortion conviction was hard enough to win, and a doctor-defendant only made matters worse. For one thing, just about any doctor in town had respectable, pillar-of-the-community colleagues to stand up for him in court and claim the abortion was a medical necessity, no doubt about it. One famous story involved an Ohio physician-abortionist who pleaded guilty to having performed three hundred abortions a year between 1934 and 1956 for fees in excess of one million dollars, yet his sentence was merely five years probation. It was clear that even if city officials decided to enforce anti-abortion laws, not all abortionists were equally vulnerable.
But there was a leveller, a device police frequently used against abortion providers whether they were physicians or not, male or female. As one observer in Ruth Barnett’s day put it, “It was to be expected that the abortionists could not ply their trade in security without insuring that law enforcement agencies would keep their eyes fixed in the opposite direction.” Many abortionists dutifully paid the insurance premium directly to the cops. Throughout the illegal decades and across the country, law enforcement officials who did not want to get involved in abortion busts understood that extortion was a remunerative alternative to arrest. In most towns it was common knowledge that wherever there were abortionists, there were cops being paid off. One reporter, snooping around among abortionists in California, came away convinced of this. He wrote, “In big cities an abortionist who operates openly in a downtown office building must be assumed to have purchased immunity, for the constant stream of women to his office would quickly attract attention.” It was not unusual that a high-level investigator looking into the goings-on in these downtown buildings would end up with more extortion-than abortion-related indictments. In the real world, the anti-abortion laws created more problems than they solved.
For thirty-three years, though, the law seemed irrelevant to Ruth Barnett. Neither the district attorney nor the cops on the beat in Portland showed any interest in the way she earned her living, from the time Alys Griff began to teach her the ropes in 1918 until Ruth’s ultimate arrest in 1951. Judging from this record, abortion was simply tolerated in Portland. It is indisputable that women requiring the services of an abortionist had a number of reputable practitioners to choose from. Many people believed that Ruth Barnett was the best. She was clean and careful and very highly skilled.
Business flourished, the money rolled in, and everything was so out in the open that it was probably hard sometimes for Ruth to remember that she was a criminal. As she described it, “There was nothing secret about my clinic in the Broadway Building. We had no locks on any of the doors except the one leading to a hall, which we locked at night. The majority of our cases were referrals from licensed physicians and surgeons.” Even prominent Catholic doctors in town sent women to Ruth’s offices. And for the clients, there was no sneaking around in those days, no strange parking lots, no dark basements. “Women came and went in my clinic,” she said, “with scarcely any more fuss than there would be in keeping an appointment at a beauty salon. Many girls came to me during their lunch hour and returned to work the same afternoon with no distress.”
In those years, Ruth was confident of her safety and of the safety of her clients. She knew that some of her colleagues were asked for what she called “hush money,” but she was left alone. Her confidence was bolstered by the simple fact that everybody who was anybody knew about Ruth Barnett and her clinic. Ruth explained, “The duly elected officers of the law, members of the medical profession and state medical board knew we were in business. Trying to conceal the clinic, or its purpose, would have been as impossible as hiding an elephant in the parlor. Thousands of women had passed through our doors, of all colors, races, and creeds and from various walks of life.” As far as Ruth could see, the anti-abortion law might as well not have existed and was treated as if it didn’t. She was convinced—and with good reason—that no one even considered invoking the “archaic” laws against her.
Over the years, Ruth became so accustomed to working as an abortionist in this kind of permissive climate that when the weather changed—and it did change drastically—she was taken completely by surprise. Police and politicians in Portland, and in cities all over the country, began to violate the venerable “unwritten agreement” they’d had with abortionists for as long as most of them could remember. In some cities beginning in the 1940s, and in Portland starting in 1951, a woman’s death was no longer a necessary condition for arresting an abortionist. From the early postwar years until the legalization of abortion in 1973, nobody involved ever again quite knew the rules. Anti-abortion statutes were invoked in what seemed like an utterly random way.
In the middle 1960s, when Suzanne Tyler, the home ec teacher, found her way to Ruth Barnett’s basement, illegal abortions were, as always, an everyday event in cities and towns across the United States. But, paradoxically, anti-abortion laws were not ineffectual, despite the fact that they did not stop girls and women from ending their pregnancies. These laws remained powerful even when they were not enforced, because they constructed the back alley and forced Suzanne and Ruth down into the basement. These two conducted their business in the dreadful shadows because state lawmakers denied them the use of a well-lighted, sterile facility and didn’t mind composing statutes that denied women the right to control their fertility. What’s more, politicians and policemen, over time, were able to choose politically expedient moments to enforce these statutes. By now, among pro-choice advocates, Ruth and Suzanne in the L-shaped furnace room—and others like them—have become emblems of the power of the law to constrain and endanger women’s lives.
But on December 8, 1965, Suzanne Tyler was no emblem. She was flesh and blood. After awhile she did sit up, barely, on the edge of the washing machine, and Ruth brought her a sanitary pad and belt. Suzanne remembered feeling awful. “I sat there and I felt like I was just going to die. I was just having all these cramps in my stomach, and I told her this and she said, ‘Don’t worry, that is what is supposed to happen.’ ” Suzanne was afraid that she wouldn’t be able to stand up or walk get back down to Henry Thiele’s Diner and meet Bill, who was waiting to take her back to the airport. She was terribly afraid that she would miss her plane. But Ruth said that Suzanne would be okay, of course she would make it, and she began to help the girl get herself together and get out.
While Suzanne was dressing, Ruth got a phone call and when she hung up, the abortionist let the girl know that another client was waiting to be picked up. Suzanne dragged herself, somehow, up the stairs into the living room. She picked up her coat from where she had left it on a chair twenty minutes earlier. She concentrated what little energy she had on getting through the front door and across the lawn to the door of Ruth’s Lincoln without letting her legs fail her.
It was difficult, but all this was done, and Suzanne thought that she should feel almost free now. But the pain in her groin was too sharp to associate with freedom. Everything about her was blurry and moving in slow motion at the same time, as Ruth helped her into the passenger seat of the car. The girl closed her eyes, squeezed them shut to squeeze out the pain, and a wave of nausea replaced the shooting stabs for a moment. Suzanne was so deep into the course of her pain that even with time slowed down, Ruth’s car stopped before the girl expected it to. They were back in the parking lot of the diner. Right away Suzanne saw Bill and Don leaning against the El Camino, looking very buddy-buddy, like a couple of guys.
Somehow, without looking at Bill who had moved to her side, Suzanne got into the truck. The one thing she knew was that she couldn’t sit up straight. It was too hard. She wanted Bill to know that it was too hard. As soon as Bill got into the driver’s seat, she let her body fall over. She let her head fall onto his right leg. Bill said, “You’re all fixed up now, and it’s only 11:15. We have plenty of time to get you on the plane.” Suzanne moaned, and Bill pulled out of the parking lot.
Suzanne made her plane to San Francisco that day at 12:30. And by mid-afternoon, she was back home in her own bed. But that was not the end of her ordeal. Unbeknownst to Suzanne, the citizens of Multnomah County, Oregon, had recently elected a new district attorney, a young, politically ambitious man, the sort of officeholder Ruth Barnett had always associated with abortion prosecutions. Indeed, the new D.A., aware that the old abortionist was still practicing, had arranged early in his tenure for the abortionist’s house to be watched. On December 8, 1965, Ruth Barnett’s house was under the surveillance of two members of the Portland Police Department. The two men, sitting in an unmarked car parked several houses below Ruth’s on Champlain Drive, had carefully noted the time when the young woman and Ruth pulled into the driveway. They had watched Ruth and her client go into the house and then, less than an hour later, come back out. They had followed Ruth’s Lincoln down the hill to the diner at 11:10. Then the officers had tailed Bill Holbrook’s El Camino to the airport and watched Suzanne board the 12:30 flight to San Francisco. The next day, the airlines had cooperated with the D.A.’s office by providing the names of the thirty-two passengers who had been on board. It had not been difficult for the investigators to single out the one young woman who had travelled alone down the coast on that lunchtime flight.
On the evening of December 15th, a Portland detective paid a call on Suzanne in her San Francisco apartment. At first Suzanne refused to answer the detective’s questions. She was shocked and terrified that this man was standing in her home, telling her he knew such a thing about her life. He also let her know that he was aware that Suzanne was a teacher. He told her that under the circumstances, she’d best cooperate. Indeed, the man was a skilled interrogator, and it was not long before Suzanne capitulated. After the detective collected all the details, he said that Suzanne should expect to hear from his office again, when they set the date for Ruth Barnett’s trial. It would be in the spring, he said.
In the weeks that followed, Suzanne felt very odd looking into the faces of her seventh-grade pupils. She felt uneasy teaching them how to become creative and efficient homemakers. But it was a distraction to go to school every morning and put on her teacher’s apron and assemble all the materials for that day’s project. Suzanne required a great many distractions that winter and spring because she had received a letter from the Multnomah County District Attorney’s office in late January informing her that the State of Oregon v. Ruth Barnett would be heard in the Circuit Court of Multnomah County on April 27, 1966.
