Sisterhood Subpoenaed: Abortion on Trial at an 1892 Women’s Medical College

Courtroom dramas are a television staple. If the Good Wife isn’t your cup of tea, there is Law and Order, How to Get Away with Murder, Suits, or Judge Judy. These programs invite the viewer into the courtroom, to envisage themselves as the advocate, the judge, the jury, or the defendant. However, such role-play is not confined to the age of cable television and binge watching: in 1892 the female medical students of the Woman’s Medical College of Pennsylvania (WMCP) participated in a courtroom drama staged by Professor Anna Broomall as part of an Obstetrics course.

This episode is unique amongst the College records (held at the Legacy Center Archives, Drexel University). In addition to its singularity, the theatrical nature of the exercise and meticulous manner of its recording make the trial remarkable. The College preserved a detailed typed transcript of proceedings totaling 48 pages, documenting 12 female medical experts’ testimonies, and capturing the reactions of 1 jury, comprised of female medical students. The idiosyncratic nature of the item prompted Dr. Carrie Adkins to write a 2012 piece posing questions about the “rather puzzling” trial. This article seeks to address these questions and offer a framework in which to place this unusual episode in the College history.

The Case

Susan Jones, a “servant girl,” was on trial “for the murder of her child, May 10th, 1890.” Her plea? Not guilty. Although a fictional case, the trial assembled a cast of real life specialists: male and female lawyers, and female faculty members who acted as expert witnesses. The female students, however, performed the role of jurors at a time when women were denied membership of juries in Pennsylvania.

As the trial began, students heard details of the case: how a doctor was called to the home of the bedridden defendant, and how the “body of a child, the cord and the after-birth” were discovered in a trunk in the corner of the room. A witness described how “the child was still … not yet stiff and the face was purplish.” When confronted with these circumstances, the court needed to decide whether the child was stillborn or died following birth, and it called female medical experts to determine the answer.

The Trial

Expert witnesses commented on the physiological features of the corpse and used specialist medical terminology to describe its measurements, the status of the windpipe, epiglottis, and lungs. The display of expert knowledge in this setting was an exhibition of female physicians’ professionalism. In the latter part of the nineteenth century, male and female physicians were engaged in a process of professionalization.

Allopathic — “regular” — physicians operated in a competitive marketplace, where they competed for authority with “irregular” practitioners of hydrotherapy and homeopathy, and other female medical practitioners, such as nurses and midwives. The process of professionalization included the formation of medical societies, colleges, journals, hospitals, and, as Felicity Turner explores in her 2010 thesis, the physician as an expert witness.¹

In orchestrating the mock trial, Broomall encouraged students to claim an authority often denied them due to their gender and recent entrance to the profession. A particularly revealing moment occurred when Prosecutor and Curator of the WMCP museum, Louise Harvey, entered the witness box as the Coroner’s Physician. The Counsel for the Defense asked Harvey where she had studied, to which she replied the WMCP. When asked if she was an expert, she retorted: “expert enough” to acquire this position. The students applauded her answer and were admonished by the Court.

In selecting the crime of infanticide, Broomall was part of a set of broader legal changes. In 1841, sixteen out of twenty-six states had no legislation regarding abortion. Of the remaining states, most structured statutes according to the quickening doctrine, whereby the fetus was not held to be alive until the mother felt it move.²

This changed in the latter half of the century, and by 1900 abortion at any stage of gestation was a crime in all states. The American Medical Association (AMA) agitated for these legal changes. The presentation of abortion as infanticide was a common rhetorical strategy in the campaign to criminalize abortion.³

A number of female medical students at the WMCP wrote on criminal abortion in their handwritten graduate theses. In these essays, female medical students reiterated male practitioners’ refutation of the quickening doctrine, and argued that doctors, rather than pregnant women, had the power to determine fetal viability.

The Fissures in Sisterhood

In their theses, students presented a particular characterization of women who sought abortions. Annette Kratz, in her 1871 thesis, argued that women of “all stations” sought abortions due to their fear of childbearing and the demands of parenting.⁴ Another student, Helen Miller, was unsympathetic to these fears, and branded them “trifling and degrading” in her 1884 essay.⁵ In their theses, Miller and Kratz appropriated the rhetoric of the male medical anti-abortion campaign, and argued that women rejected motherhood as an obstacle to their love of “society,” “fashion,” “luxury,” and “pleasure.”

This echoed AMA rhetoric regarding bourgeois women. The 1871 AMA Committee on Abortion alleged that it was married women who sought abortions, in an attempt to shirk their “domestic duties and responsibilities” in pursuit of “pleasure and fashion.” Kratz’s and Miller’s use of this rhetoric of moral difference was to an extent performative, as it distanced them from accusations of abortion.⁶ However, they were also negotiating their own self-presentations in comparison to other women.

Through their characterizations of women who sought abortions, these students teased out their own identity and femininity, which emphasized economic self-sufficiency, a willingness to endure toils, and — in regards to abortion — reverence for maternity.⁷ Dean Edwin Fussell, in a speech during the 1861 WMCP graduation ceremony, asked the graduates: “could you be content to do nothing and be nothing and even glory in such shame? Like alas! So many … You have left the throng of your sex, and you are here!”⁸

His words reflect the processes of individual and collective identity formation that students underwent at the WMCP, and how they distinguished themselves from other women: separated by class, education, and life style. This process played out in the forum of the 1893 mock trial.

In the closing statements of the 1892 trial, the District Attorney, played by real-life lawyer Rebekah E. Roberts, appealed to the jurors’ identities. Roberts attributed the history of lenient treatment of women accused of infanticide to the decision-making of all-male juries. She suggested that, should women be permitted to serve on juries, they would “see the facts as they are” and not be swayed by the chivalric tendencies of men.

She argued that while female jurors would recognize the shame felt by an abandoned woman, they would equally recognize women’s capacity to have an abortion or commit infanticide. This was an interesting appeal to the jury of female medical students. It recognized the common sympathy between women, but equally the distinctions female physicians negotiated between themselves and women who procured abortions.

The Verdict

And what was the verdict following Roberts’ appeal? “The jury disagreed and was discharged by the Court.” The divided verdict reflects the multifaceted and diverse ways in which female physicians engaged with the fraught, gendered, issue of abortion in late-nineteenth century America. Additionally, the split verdict alludes to the fissures in the idea of “sisterhood” between female physicians and their female patients, a rhetoric that had been so championed by early female entrants to the profession.

In addition to preparing female medical students to perform the duties of the newly professionalized physician, the mock trial was a forum in which the participating students negotiated their professional and personal identities. Throughout the trial, divisions and tensions were selectively hidden, advanced, and exploited by the female lawyer, expert witnesses, and ultimately the jury of medical students.

Notes

1. F. Turner, Narrating Infanticide: Constructing the Modern Gendered State in Nineteenth-Century America (Unpublished doctoral thesis, Duke University, 2010) Return to text.
2. For a full discussion of the criminalization of abortion, see James Mohr, Abortion in America: The Origins and Evolution of National Policy, 1800-1900 (New York, 1979) Return to text.
3. See for instance, the 1888-1889 Chicago Times abortion exposé “Infanticide”. Return to text.
4. Annette Kratz, Criminal Abortion (1871), 2, thesis held at the Legacy Center, Drexel. Return to text.
5. Helen Miller, Feoticide (1884), 5, Legacy Center, Drexel. Return to text.
6. W. L. Atlee, T. O’Donnell T, “Report of the Committee on Criminal Abortion”, Transactions of the American Medical Association, 22 (Philadelphia, 1871), 8-10. Return to text.
7. For discussion of the importance of income to female physicians’ self-views and professional presentations see Vanessa Heggie, “Women Doctors and Lady Nurses: Class, Education, and the Professional Victorian Woman”, Bulletin of the History of Medicine, 89 (2015), 267-92. Return to text.
8. Edwin Fussell, Valedictory Address at the Tenth Annual Commencement (March 13, 1861), 4. Legacy Center, Drexel. Return to text.