Law, Medicine, Women’s Authority, and the History of Troubled Births: Review of Proving Pregnancy

Lara Freidenfelds

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With Roe v Wade upended, the balance of power and authority among lawmakers, medical practitioners, and pregnant and birthing people is suddenly in flux. And at the center of the storm, the safety and autonomy of those carrying (and losing) pregnancies is in jeopardy.

Historical investigations into troubled pregnancies and births, therefore, are salient and urgent.

In her new book Proving Pregnancy: Gender, Law, and Medical Knowledge in Nineteenth-Century America, Felicity Turner examines legal cases of women accused of infanticide and concealment of stillbirth, focusing on evidence from North Carolina and Connecticut. The definition of infanticide as a crime had fluctuated over the previous centuries: in medieval England, it was treated alongside late-term abortion and punished by the church courts as a lesser crime than homicide.^[1] A 1624 English statute, written to address a perceived increase in children born out of wedlock and subsequently abandoned or killed, imposed the death penalty for not only infanticide of “bastards” whose live births could be attested to by witnesses, but also for the concealment of stillbirth. Women who had stillbirths alone were presumed to have committed infanticide, especially if they hid the corpse.

Puritan colonists brought this conceptualization of infanticide to the new world, and formalized it in late seventeenth-century laws. While the absolute number of cases prosecuted was small, those women who were found guilty were treated harshly and scores of women were hanged for their crimes.^[2]

The mid-eighteenth century into the nineteenth century saw an easing of public attitudes, with increasing sympathy for the desperate women who found themselves pregnant out of wedlock, a situation which threatened social censure and economic ruin. Juries declined to impose the death penalty even when the facts seemed to support it.^[3]

Turner’s focus, though, is not on the previously-told story of the decline of executions or the increase in public sympathy. Rather, Turner centers the book around her idea that through the early decades of the nineteenth century, knowledge about pregnant bodies was the “property” of women, but as the century progressed, that knowledge increasingly became the “property” of male doctors. Through the early nineteenth century, juries of inquest, convened to help coroners determine a cause of death, depended on the testimony of women—midwives, female relatives, and household and community matrons—to decide whether or not a woman had been pregnant and an infant had been born alive or stillborn. As courts were further formalized and law and medicine professionalized during the nineteenth century, (male) physicians increasingly served as expert witnesses in place of the women on juries of inquest, examining babies’ corpses at length using new, avowedly scientific methods. The focus of testimony shifted from the bodies of postpartum women and the gossip networks that observed a growing belly, to the bodies of deceased newborns who might or might not have been born alive.

The term “property” is Turner’s analytic label, not a term from her primary sources. She describes midwives’ and matrons’ traditional authority to examine women’s bodies and discern signs of pregnancy as a form of “intellectual property” (though not in the formal sense used in legal scholarship). During the same decades that this traditional female authority eroded, feminists started demanding that women be accorded the same property rights as men, such as the ability to own property in one’s own name, inherit and bequeath, take loans, and so on–rights that women did, indeed, gain by the late twentieth century. By calling traditional authority a form of intellectual “property,” Turner suggests that we should see a direct trade-off between what was lost and what was gained, rather than interpreting feminist gains as an unreserved triumph.

This argument about the loss of women’s traditional authority emerges from a central lineage of scholarship in the history of women’s health. In 1973, at the height of the women’s health movement, Barbara Ehrenreich and Deirdre English made waves with Witches, Midwives, and Nurses: A History of Women Healers, which painted a romantic vision of traditional healers as women helping women, and modern medicine as an aggressive masculine takeover of the profession and the female bodies it claimed the authority to treat. Carroll Smith-Rosenberg crafted a more sophisticated and scholarly version of this narrative in her 1986 essay “The Abortion Movement and the AMA, 1850-1880” (in Disorderly Conduct: Visions of Gender in Victorian America). Smith-Rosenberg showed how nineteenth-century elite doctors campaigned against abortion as part of constructing their medical identity and authority against the midwives, wise women, and “irregular” practitioners such as herbalists and chiropractors who previously provided reproductive care, collaborating with other bourgeois men to control women’s bodies.

In Turner’s narrative, the female examiners on early nineteenth-century juries of inquest successfully shielded female suspects from the shame of examination by men. Only enslaved women, whose chastity and propriety were unprotected, were subject to terrifying and shameful searches by male doctors. The presumption of female expertise was so great that in some cases even enslaved women were called upon as reliable female witnesses. Later, once the legal profession and the courtroom were more professionalized and regularized, physicians were regarded as more appropriate expert witnesses, and women rarely testified on behalf of the state at infanticide trials. Toward the end of the century, lawyers and the public increasingly regarded insanity as the obvious cause of something so “unnatural” as infanticide, and accused women were regularly acquitted based on insanity pleas substantiated by male medical experts.

Turner acknowledges that physicians’ expert testimony saved the lives of many defendants, though she points out that the alternative was sometimes many years in prison, which was not necessarily a great improvement over the death penalty. Despite arguably better outcomes, Turner argues that coming to rely on male physicians’ testimony in these cases was problematic for women as a whole, because it reinforced the male medical profession’s claim to the right to evaluate women’s reproductive bodies and lives. She concludes by calling upon readers to reclaim the female right to evaluate female bodies.

As inspiring as this sounds, it is a problematic sleight of hand. The “property rights” of women in earlier times did not include the right of each individual woman to evaluate the truth of her own body—women were not accorded, in the words of Linda Gordon’s book on the history of birth control, decision-making power over their own bodies as “the moral property of women.” Rather, it was the right of certain women to act as agents of the state in order to punish other women.

In her work on early modern English women, historian Laura Gowing has shown how midwives and matrons examined poor servants pregnant by their masters or fellow servants, whether enacting the legal ritual of pressing them for the name of the father of the child at the height of birth pangs, when they were presumed to tell the truth out of fear of God’s wrath should they die in birth, or examining a woman’s body to determine whether her breasts had milk and her genitals had endured birth recently. These examinations could be menacing to vulnerable young women accused of fornication and infanticide. Midwives and respectable matrons had power, yes, but it was the power to enforce patriarchy on other women as agents of the state.^[4]

Today, obstetricians in the United States are overwhelmingly female, and the American College of Obstetricians and Gynecologists strongly supports abortion access. But the anti-abortion movement has also been led largely by women, and across the country women staff Crisis Pregnancy Centers designed to trick women into forgoing abortions. The gender analysis of traditionalist matrons and midwives as proto-feminists and doctors as anti-feminists clearly no longer holds, and Gowing’s portrayal of early modern English culture calls into question whether it ever did. Empowering women like Alabama governor Kay Ivey and Supreme Court Justice Amy Coney Barrett increases the danger that women will suffer difficult births and be prosecuted for pregnancy losses whether intentional or accidental. Women’s claims over other women’s bodies are far from feminist.

Turner is on stronger ground in her analysis of Black women’s childbearing. For example, she introduces dueling narratives of slavery and infanticide, complicating abolitionists’ heart-rending stories of enslaved mothers killing their children in order to save them from lives as chattel. Turner shows that pro-slavery advocates repeatedly described how free Black women sometimes committed infanticide, claiming that this meant Black people were better off under enslavement, and that Black people were by nature immoral and unfit for freedom. In the larger rhetorical battle, the suffering of Black families too often turned into mere talking points.

Many of the stories in the book made me want to know more. Francis Hood, for example, was a Black woman tried for infanticide in North Carolina in 1880. Turner gives many details from extensive newspaper reports of the trial and aftermath. Hood was convicted, but the jurors recommended mercy, and the judge and prosecuting solicitor petitioned the governor to pardon. Hood’s sentence was commuted to imprisonment. Eight years later the citizens of Lenoir, Hood’s home town, petitioned the governor to pardon her. After multiple attempts over two years, he finally complied. Who were these community members fighting for Hood’s freedom? Were they Black or white? Amidst profound Black oppression, why were so many moved to mitigate Hood’s sentence?

In Proving Pregnancy, Turner has uncovered an important and provocative set of sources, and opened a path for further investigation of troubled births, in the past and present.

Notes

1. Laurel Ulrich, Good Wives: Image and Reality in the Lives of Women in Northern New England 1650-1750 (New York: Knopf, 1980), p. 195-96. ↑
2. Peter Charles Hoffer, Murdering mothers: infanticide in England and New England, 1558-1803 (New York: New York University Press, 1981). ↑
3. ibid.↑
4. Laura Gowing, “Secret Births and Infanticide in Seventeenth-Century England,” Past & Present, No. 156 (Aug., 1997), pp. 87-115. ↑

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Featured image caption: Five women prisoners convicted of infanticide at Woking Convict Invalid Prison. Process print after Paul Renouard, 1889. (Courtesy Wellcome Collection)