- In the 19th century, every state passed laws against abortion, but those laws were rarely enforced. Tweet This
- Dobbs will restrict the supply of abortionists. But in big blue states like California, New York, and Illinois, abortion will still be rampant. Tweet This
- Going forward, pro-lifers need to emphasize compassionate approaches that can reduce demand for abortions. Tweet This
Pro-lifers rejoiced over last June’s Supreme Court decision that liberated the United States from a half century of Roe v. Wade. It was an earthquake. But since then, we have had a pandemic of bad news.
Here are just three of the difficult developments. First, the number of abortions has probably not declined very much. Tragically, frightened women carrying unborn children have headed to blue states for abortions; big corporations have sometimes paid their transportation costs. Other women have swallowed abortion pills in the privacy of their own apartments, all alone, all apart from pregnancy resource centers that could help them.
Second, the federal government stands firmly on the side of abortion. The Justice Department says the Postal Service can deliver abortion pills to women in states that make abortion illegal. The Food and Drug Administration announced that retail pharmacies can now sell abortion pills. And so on.
Here comes strike three: K in baseball is the symbol for a strikeout, and referenda votes in red states like Kansas and Kentucky have brought punchouts of pro-lifers. My old newspaper, The Boston Globe, recently ran an article glorifying the architect of victory for the abortion side in those elections, Rachel Sweet, who works the churches in which congregants say, I don’t like abortion, but I’m worried about a religious tyranny being imposed. Sweet stokes fears of “extreme bans, ban with no exceptions. Those are really out of step with mainstream values.”
That’s a reaction the pro-life side should ponder. When is it right to emphasize the overwhelming majority of abortions that occur for a variety of personal, social, and economic reasons, and, for now, not try to ban the small minority that occur after rape and incest?
I’ve been involved in this battle for 40 years, ever since my wife Susan and I moved to Austin, Texas. I went there to teach at The University of Texas, but I suspect God wanted us there so Susan could start the Austin Crisis Pregnancy Center. Through her work, she brought me into the pro-life movement. Over the years, I’ve dug deep into abortion history. Last week brought the publication of my latest book on the topic, The Story of Abortion in America, written with Leah Savas.
The real-life stories in my new book, I hope, are interesting in themselves. But they also show the truth of what Justice Samuel Alito wrote in the Dobbs decision that overturned Roe: Abortion has never been “deeply rooted in this Nation’s history and tradition.” At the same time, the stories we share reveal the limits of law. In the 19th century, every state passed laws against abortion, but those laws were rarely enforced.
In the 19th century, laws [banning abortion] worked on the supply side but did little to decrease demand.
Here's one prime example. In 19th century New York City, abortionists bribed or blackmailed police and judges. The most famous abortionist, Madame Restell, was unpopular but advertised openly. The city’s major newspapers profited from her ads and protected her. One newspaper that did not take her ads, the New York Express, said
Those who are most guilty are bound by their fears to protect her…. Names, and dates, and circumstances are all recorded, and her downfall would shake society to its very centre…. In a word, Madame is a woman of genius who understands her position and knows how to use its advantages.
New York law made it a crime to give a pregnant woman any drug for bringing about an abortion, or to use any instrument to cause one. But the law was not enforced. In Massachusetts, which had a similar law—along with some district attorneys who tried to enforce it—32 abortion trials between 1849 and 1857 produced zero convictions. The most-used medical jurisprudence textbook in 1855 said it is “easier to pass laws against abortion than to make them work.” In trials, one or two jurors usually held out. If the jury was unanimous, bribed judges overturned verdicts.
That’s the way it worked. Pass a law, hurrah. Try to enforce it, bah. Laws worked on the supply side but did little to decrease demand. Madame Restell was an abortionist for 40 years, from 1838 to 1878. She did go to prison once—for a year—where she received special, almost luxurious, treatment. She came out saying news reports of her trial were easily worth $100,000 to her in advertising—that’s millions today. She lived in a grand mansion on Fifth Avenue in NY City, a block north of where a new church, St. Patrick’s Cathedral, was being built.
Other abortionists, from 1900 on, stayed out of jail, with rare exceptions. Four of the most infamous were publicly known for decades in Oregon, Michigan, Pennsylvania, and California. One performed abortions primarily out of revenge on men. Another—victimized by racism—had embraced Marxism. A third was a convinced materialist and Darwinist.
The fourth, Inez Burns, was destitute following the San Francisco earthquake in 1906. I imagine her standing like Scarlet O’Hara in Gone With the Wind, saying, “I’ll never be hungry again.” From the 1910s to the 1950s, Burns performed about 50,000 abortions in San Francisco and Oakland. She gained a mansion with a walk-in closet that had slots for 320 hats. She purchased diamond collars for her two pet Pomeranians.
In 1946, an ambitious district attorney, Edmund “Pat” Brown, went after her. He persevered through one trial where the jury was 11-1 against her, but juror 12 would not budge. Brown tried again: another hung jury. The third time, he got a conviction. Burns went to prison for two years, then came out and resumed her abortion business. She invested half of her revenue in payoffs and bribes: $6,000 per week to downtown officials, $12,000 per month to San Francisco police, and $5,000 to every politician running for office.
Inez Burns died in bed at age 89. She had a statue of a little boy in front of her house. She left instructions that her abortionist tools should be put in the casket with her: “I relied on them…. They are what got me everywhere.” She also “got” Pat Brown everywhere. Since abortion was not deeply rooted in America, Brown gained popularity by cutting down one stalk. Trial publicity helped him become governor of California. Later Brown’s son became governor.
Going forward, pro-lifers need to emphasize compassionate approaches that can reduce demand for abortions.
Red states that maintain opposition to abortion and manage to keep their laws against it intact in the 2020s and 2030s will nevertheless still have abortions: mostly by pill, some by surgery. I’m not saying the Court’s recent decision, and the pro-life laws some states will maintain, are useless; they will restrict the supply of abortionists. They will save some lives. But in big blue states like California, New York, and Illinois, abortion will still be rampant. In cities like Austin that are blueberries in bowls of tomato soup, I will be amazed if a jury of 12 randomly-selected men and women finds an abortionist guilty.
Going forward, pro-lifers need to emphasize compassionate approaches that can reduce demand for abortions. Prime among them: pregnancy resource centers that offer free material, psychological, and spiritual help to women (and men) in need. They provide 3D or 4D ultrasounds so pregnant women and the fathers of their unborn children can make an informed choice, and they provide a new support community for women when their old one has rejected them. They don’t abandon women who choose abortion, and instead offer post-abortion counseling.
Besides, God told Moses, “Vengeance is mine.” In 1878, when Madame Restell was 65, she began to pace the richly carpeted halls of her mansion like a latter-day Lady Macbeth, looking at her hands, bemoaning her situation. I’d like to say she crossed over to the pro-life side, as some recent abortionists have, but no, she committed suicide.
Marvin Olasky is a senior fellow at The Discovery Institute. He served as editor-in-chief of World magazine from 1994 through 2021 and as Professor of Journalism at The University of Texas at Austin from 1983 to 2008. He is the author of 29 books, including his latest with Leah Savas, The Story of Abortion in America.
Editor's Note: The opinions expressed in this article are those of the author and do not necessarily reflect the official policy or views of the Institute for Family Studies.