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In his concurring opinion in Dobbs v. Jackson Women’s Health Organization, Justice Brett Kavanaugh expressed hope that reversing Roe v. Wade would help deescalate the national abortion conflict. Instead, the months following the decision have opened a new front in the war over reproduction, one in which states have not only criminalized abortion but also explored unprecedented and possibly unconstitutional methods of enforcing criminal laws. Alicia Gutierrez-Romine’s timely, meticulous study of the world of criminal abortion in California offers a powerful glimpse of where we might be heading next. Gutierrez-Romine carefully documents familiar inequities facing low-income and primarily nonwhite patients caught up in criminal investigations, but her book adds to our understanding of the workings of criminal abortion by focusing on a wider cast of characters, especially those facing prosecution for performing or aiding and abetting abortion and providers, including doctors and midwives of color, whose stories are less well known.

Historians such as Leslie Reagan have established that after states criminalized pre-quickening abortion in the later nineteenth century, criminal prosecutions were the exception rather than the rule, at least before the 1940s, and most often took place when a pregnant patient died to medical negligence. Gutierrez-Romine adds nuance to this narrative, exploring the different fates of abortion providers of different races, sexes, and professional statuses. At least at times, status helped to shield white male doctors from the harshest effects of criminal abortion laws—and allowed them to effectively advocate for reform when they did face prosecution. By contrast, physicians of color and midwives faced more scrutiny from the press, from jurors, and from prosecutors. Gutierrez-Romine paints a compelling picture of a system of unequal justice that may closely resemble one emerging in the post-Roe era.

Gutierrez-Romine begins by making sense of a familiar riddle: how abortion came to be broadly criminalized and yet rarely prosecuted. Much as physicians in the American Medical Association successfully convinced legislators to bar abortion in the late nineteenth century, abortions remained invisible when safely performed. (Pp. 41-42.) As Gutierrez-Romine argues, the fact that most prosecutions involved the death of a patient transformed legal and cultural understandings of the crime of abortion.

The heart of her story is the world of criminal abortion (and abortion prosecutions) in California. The justice that met well-known doctors accused of performing abortions in cities Los Angeles, Gutierrez-Romine shows, involved more shame than concrete consequences. Prominent, white physicians in her story faced prosecution, won acquittals, temporarily lost their medical licenses but then soon found their way back into medicine. The courts enlisted these physicians in a form of mythmaking about abortion: women on their death beds were forced to reveal the names of the men who fathered their children and then presented as victims of wayward seducers. This narrative stood in stark contrast with reality: 80 percent of those who died due to abortions in Los Angeles were married.

Defendants’ experience in the world of criminal abortion varied significantly by race. Gutierrez-Romine documents how male physicians of color mobilized their status to marshal significant support from within their own communities, presenting themselves as “pillars of respectability” (P. 88) who modeled respectability and success in a world of profound segregation. These physicians won the support of the Black press and community organizations of color but still fared poorly in court, often being convicted of serious charges and remaining in prison for years. Gutierrez-Romine shows that female defendants, too, faced harsher consequences, many of them framed as “the mid-wife type,” a woman without the expertise, status, or professional support of male physicians.

In Gutierrez-Romine’s telling, the late 1930s and 1940s proved to be a turning point in California, one driven at least as much by the opportunities available to ambitious prosecutors than by the rise of pronatalism or shifting ideas about “rackets” and organized crime. She shows that key prosecutions can serve as a kind of trial balloon: prosecutors successfully prosecuted the members of the Pacific Coast Abortion Ring “in the absence of patient deaths and complications.” (P. 151.) The easier prosecutions became, the more arrests and prosecutions ensued.

The next chapter in Gutierrez-Romine’s story will be familiar to those following the story of post-Dobbs developments: networks of criminal surveillance pushed those seeking abortion to travel out of the state and often the country, as many crossed the border into Mexico. She mines state files on the revocation of physician licenses, state coroner’s records, city council files, and grand jury records to paint a picture of criminal punishment of abortion in the state in the aftermath of the Pacific Coast Abortion Ring. Travel for abortion again led prosecutors and reporters alike to thread narratives of race into their understandings of abortion.

Tijuana abortions play a contradictory role in the history Gutierrez-Romine narrates. On the one hand, these procedures were broadly unregulated, leading to an influx of patients in California hospitals. This surge in patients encouraged hospitals to develop therapeutic abortion committees—and to suggest that some abortions were more legitimate than others. By demonizing Tijuana procedures as unsafe, supporters of limited reform presented the mostly white physicians practicing in hospitals as more legitimate—and as members of a medical community rather than criminal actors. Abortion opponents condemned what they saw as “Tijuana abortions,” framed as a distinctly un-American phenomenon. In reality, travel for abortion also involved physicians from California traveling to Mexico to perform procedures there. At first, complicated questions of choice of law made it hard to win prosecutions: even if physicians arguably conspired in California, jurors and judges alike were unsure of the state’s power to regulate out-of-state conduct.

Understanding Gutierrez-Romine’s history is urgent because she makes clear that there was nothing inevitable about the transition from cross-border abortion to reform. Even as some portrayed cross-border abortion as a sign that the law was broken, California lawmakers were searching for ways to close the “loophole” that allowed these procedures to continue, expanding ideas of aiding or abetting or conspiracy to reach a broader class of defendants. Her book offers a chilling perspective on the internal logic of criminal abortion—one in which experiments with criminal charges lead to new criminal charges, one defined not only by unequal justice but also by travel and the legal transformations required to prevent it.

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Cite as: Mary Ziegler, The Past and Present of Criminal Abortion, JOTWELL (January 31, 2023) (reviewing Alicia Gutierrez-Romine, From Back Alley to the Border: Criminal Abortion in California, 1920-1969 (2020)), https://legalhist.jotwell.com/the-past-and-present-of-criminal-abortion/.