Grits for Breakfast 7/4/2022
During my three decades working on criminal-justice reform, when abortion came up, your correspondent always took the attitude, "That's someone else's job." Not anymore. As of last week, abortion became a criminal-justice issue in Texas, full stop.
The US Supreme Court's abandonment of Roe vs. Wade -- combined with a decision last year by Greg Abbott and the Texas Legislature to re-affirm criminal statutes on abortion from the 1925 Penal Code, if and when Roe ever fell -- suddenly have dumped the abortion question back into the realm of criminal law.
SCOTUS decided Roe v. Wade when I was four years old, so I've never known a world in which the criminal courts managed women's reproductive choices. Thus it's easy to forget that the Wade in Roe v. Wade was Henry Wade, the Dallas County District Attorney,* and that for a century-plus before that, both obtaining and assisting with an abortion were crimes for which people were arrested by police, charged by prosecutors, sentenced by juries, and imprisoned in the same facilities as murderers and thieves.
Statutes banning assisted or intentional miscarriages were on the books in Texas from at least 1854, before being updated to include the word "abortion" in 1907 and then codified into the Penal Code in 1925. Attorney Doug Gladden goes through that statutory history here.
Gladden identified 40 abortion convictions in Texas appellate records: 24 before 1925, 16 of which were reversed, and 16 from 1925 to 1971, of which five were reversed. Some cases may not have been appealed, and records may not be complete, but even so, this tells us abortion statutes weren't frequently enforced.
What they did do was prevent most legitimate, trained doctors from performing them. In Greenville, for example, in 1905, a black doctor was arrested for performing an abortion on an 18-year old girl. In 1907, a physician was prosecuted in Haskell, TX, for performing an abortion on his 13-year old sister-in-law, who had been raped. In El Paso, Dr. Andrea Reum, whose husband was also a medical doctor, was prosecuted after performing an abortion on a young black woman. She was a rich society lady who wore fashionable gowns and diamonds while incarcerated in the county jail.
The earliest case I found reported in Texas newspapers was n 1890 in Comanche, when a medical doctor was arrested for performing an abortion. Charges were later dismissed when the victim refused to testify.
Such episodes were widely publicized in the press and sent a message to physicians that performing abortions would cost them their licenses. In 1919, the Legislature passed HB 235 making that official, requiring license cancellation by the state medical board for any physician found to have given a criminal abortion.
More:
https://gritsforbreakfast.blogspot.com/2022/07/cjreform-movement-poorly-positioned-to.html
