You may have missed the news this week that a woman has been jailed for 28 months for illegally procuring an abortion. This woman, in the first lockdown, obtained mifepristone from BPAS over the phone after misleading them over her gestation, and subsequently gave birth to a stillborn child, born at approximately 33 weeks. She was prosecuted for procuring an abortion under the 1861 Offences Against the Person Act, which is an Act that comes up repeatedly when you’re an historian of nineteenth century crime and death.
This case has enraged me, and other scholars of infanticide, abortion and women’s history in general, so much so that I have written up a miscellany from the murky world of the nineteenth century abortion, to illustrate how this law was applied when it was new.
Normal service will resume on Friday.
Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life.
So sayeth the Act, which also made this same action performed by another equally illegal. This Act succeeded Lord Ellenborough’s 1803 Act, which made abortion *after the child quickened* punishable by death. Quickening is movement within the womb, typically felt at some point between 14 and 20 weeks, but sometimes not felt until much later, if at all. If the child had not quickened, the sentence was transportation for life. The offence was streamlined with the removal of the death penalty in 1837, under the Punishment of Offences Act. The 1861 Act simply elucidated exactly what was being prosecuted.
The problem with researching historical abortion is that it was secret. Stories of abortion come to us through court cases, through inquest reports, through them going wrong. We do not hear of the countless successful abortions: their success made them invisible.
But if a woman died during the course of an abortion, at a time when all abortion was illegal, then the person who caused it was liable to be charged with murder. If she’d done it to herself, then her inquest should returned the verdict felo de se, criminal suicide, denying her Christian burial.
The reality was, as usual, rather more complicated.
Abortions, then as now, typically took two forms: medical and surgical. Mifepristone, the modern abortion drug, was not developed until the 1980s, so we are not talking about rigorously tested, safe medication when discussing historical medical abortion.
Sometimes, medical abortions were herbal: tansy, ergot, pennyroyal, colocynth. Alcohol and a hot bath was a folk tale, although didn’t generally work. And then the big guns came out.
Lead.
Iron chloride.
Gunpowder.
Arsenic.
And if these didn’t work, or if the pregnancy was advanced, then a surgical abortion. No anaesthetic, no consent forms explaining the procedure, and no asepsis. No vaccuum extraction. No foetocide. Just a man or woman with some tubing, or a sharp implement, designed to irritate the uterus, break the amniotic sac, and induce early labour. Hopefully the baby was killed in the process. If not, this child might end up unidentifiably ‘found dead’.
Let’s begin with some cases from before the 1861 Act, when procuring an abortion was punishable by transportation for life. Sarah Burton died in 1855, after being given an abortifacient by her uncle. The newspapers are coy about which drug, and said “no criminal act could be traced to the guilty party, although strong suspicion exists.” Nobody was charged either for providing Sarah with the drug, or killing her.
Two years later, a few miles away, Elizabeth Williams became pregnant by her married boyfriend. This was clearly not the first time it’d happened, because her boyfriend knew just what to do: he fed her vast quantities of arsenic. Elizabeth took 450 grains across five months. She was paralysed temporarily. She eventually gave birth to a dead baby, and her survival was dubious in the aftermath. However, she did survive. Her boyfriend was tried for administering poison with intent to procure a miscarriage… and sentenced to two years in prison. No transportation for him.
Emma Jeffrey is one of the saddest cases in my data. She had four children and had been abandoned by her second husband. She became pregnant by her lodger in 1860. She couldn’t marry him, because she was already married. She was recieving poor relief, which would stop if she had another child, while unmarried. So, at around the fourth month of gestation, she purchased tincture of steel - iron chloride - from ‘a gypsy woman named Jones’. It would have worked, but she had fibroids and died of the resulting haemorrhage. Her boyfriend was censured for not getting help - but this was the issue with the abortion laws being as they were. You died without help, and were arrested with it. The jury could have returned a verdict of felo de se, but did not. The police could have arrested the woman Jones. They did not. Emma’s four children went to the workhouse, but there was no legal action. Perhaps they considered her death to be punishment enough.
Polly Everitt died in 1878, after the 1861 Act came into force. Engaged to one man, but pregnant by another who was also engaged to someone else, Polly’s social life was in crisis. Her secret boyfriend suggested she end the pregnancy with bitter apple. The next day sent out to the chemist for some colocynth, used to keep moths from clothing, and as a laxative. She took a quarter of an ounce, twenty times the recommended laxative dose, and died in agony. Her pregnancy was very early, only five weeks. The inquest returned an accidental death verdict.
In 1902, Edith Climpson found herself pregnant and went to a local life insurance agent who dabbled in making his own abortifacients. She took eighteen of the pills he supplied. Their main ingredient was lead. She also obtained colocynth from a local woman. What a mixture! What desperation! Two months later, she finally miscarried, almost dying in the process. Edith prosecuted the suppliers, under the 1861 Act. They were both acquitted, and their acquittal was met with applause. There was no local appetite to see abortionists prosecuted. Nobody was out for their blood.
Surgical abortion is the hardest to find evidence of. This is because it was typically carried out by an actual doctor, who knew how to cover their tracks, and were dangerously, negligently secretive. In Derbyshire in 1873, a young girl Louisa Atkin was impregnated by her father. Louisa’s father, a hideously abusive man, initially ignored the issue. Eventually, he allowed her mother to approach a certain local doctor who agreed to do it for £1. The doctor, James Poole, initially gave Louisa some medicine but told Mrs Atkin that he did not think it would work because the pregnancy was too far advanced. He was right. He came back a week later, boasting of how often he performed such operations, promising there would be no danger. He performed a surgical abortion using soapy water and tubing, a diabolical treatment. The baby was born dead two days later, and Louisa died the day after. But James Poole was acquitted of murder, after his defence argued that a doctor would never employ such a primitive method of abortion. The evidence given around the death of Elizabeth Harding, who died in Birmingham in 1887, suggests that doctor-led abortions were incredibly dangerous. In Elizabeth’s case, she paid £3 to drunk, hooded Dr Henry Cowley who pierced her uterus. She died in agony three days later. In this case, Cowley was initially acquitted, although later re-arrested after confessing performing the abortion to a cellmate. He was charged with murder, not procuring an abortion, and found guilty with a recommendation for mercy. His death sentence was commuted to life in prison.
What comes through in stories of nineteenth-century surgical abortion is the terror. Women knew they might die. Annie Harris tried everything to abort her child, except surgical abortion. She was too afraid. And, as I suspect happened in many cases, her child ended up dead by foul play.
But the terror of surgical abortion was tempered by the terror of becoming an unmarried mother. This comes through in the various sad suicides of young pregnant women, drowning themselves in desperation. In 1873, Eliza Wilson had a child with a man who subsequently married someone else. Four years later, she became pregnant by him again and drowned herself and her little boy. She left a note, blaming her ex. Sarah Longfoot drowned herself in 1893, because she couldn’t bear the shame.
There does not appear to have been any particular desire to prosecute abortion under the 1861 Act. If a woman died in the course of an administered abortion, then the charge was murder anyway. If she did it to herself, nobody really cared. If the woman survived, even if she raised her own prosecution, nobody really cared. This throws the current situation into sharp relief. A law that was inconsistently applied at the time, and that does not take into account modern practice seems a most curious one to apply today. Why is this situation not covered by the Abortion Act 1967? Who decided to pull up this relic, use it to prosecute a woman, and then apply more draconian sentencing than was used contemporaneously?
Abortion is not a pleasant subject to discuss. It is emotive, people are passionate about it on both sides. The worse case scenarios are always pulled out: the pregnant child, the incestuous conception, the dying woman. But abortion is commonplace. Abortion happens all the time, and always has. It predates law.
Everyone knows someone who has had one though, even if they don’t know who.
If we do not discuss it because it’s uncomfortable, then we do a grave disservice to any woman, past, present and future, who has had one, who may have one. We need laws that match modern practice, not laws from 162 years ago. Our infanticide laws were reformed one hundred years ago. Why should our abortion laws be more draconian than our infanticide laws? Where is the discretion? Where is the compassion?
Sarah Burton (1837-1855), Emma Jeffrey (1825-1860), Polly Everitt (1856-1878), Louisa Atkin (1858-1873), Elizabeth Harding (1865-1887), Baby Harris (1897), Eliza Wilson (1852-1877), Frederick Wilson (1873-1877), and Sarah Longfoot (1873-1893)