Vintage Chicago Tribune: From 1800s to now, history of abortion access in Illinois
Hey Chicago — do you know how long laws governing abortion have been on the books in Illinois?
Since Abraham Lincoln was a teenager.
But, how did we get from a statute outlawing the sale of abortion-inducing drugs in 1827 to establishing reproductive freedoms within our state law that will survive the expected overturning of the Roe v. Wade decision by the U.S. Supreme Court?
I asked Leslie J. Reagan, professor of history at the University of Illinois at Urbana-Champaign, where she has affiliations in the departments of Gender and Women’s Studies, Media Studies and the College of Law, to help provide context. Reagan is the author of “When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973″ and “Dangerous Pregnancies: Mothers, Disabilities, and Abortion in Modern America.”
Q&A with Leslie J. Reagan: The history of abortion law in Illinois
Illinois passed its first abortion statute in 1827 — when Abraham Lincoln was a teenager. Was that normal for the time period or did this make Illinois a trendsetter?
Reagan: “Most important is that Illinois, like the rest of the country during early colonial settlement and statehood, followed British Common Law and treated abortion after ‘quickening’ only as a violation of the law. Quickening was the moment when a woman felt fetal movement, or ‘stirred,’ as it was called, what we might refer to today as ‘kicking.’ The determination of when she was ‘quick with child’ was hers alone. The law, thus, allowed women the right to end early pregnancies. Quickening, authorities recognized, might be up to the 25th week of pregnancy.
The 1827 statute was a poison control measure. These early laws were directed at the medications sold to ‘bring on the menses,’ which may or may not have succeeded in inducing miscarriages, but sometimes poisoned and killed women who took them. Connecticut was the first state to pass such a statute in 1821 and by 1839, eight states had similar statutes to protect their citizens from dangerous medicines.
The key change in Illinois law regarding abortion was in 1867 when the state criminalized abortion at every stage of pregnancy. It was part of a wave of such laws that passed in the 1860s and 1870s. These laws followed upon a campaign of a very small group of elite doctors who insisted that quickening was meaningless, equated abortion with ‘infanticide,’ and sought to improve their own social status and moral authority through new laws banning early abortion.”
For those who are unfamiliar with abortion law in Illinois, can you please describe some milestones that ultimately lead to its legalization?
Reagan: “Two attorneys from the Chicago ACLU and Chicago Legal Aid Bureau challenged the Illinois criminal abortion law, like other attorneys around the country. In 1971 in Doe v. Scott, the federal court found the Illinois abortion law unconstitutional because, it said, a physician who believes an abortion is necessary for the woman’s health, ‘finds himself threatened with becoming a felon’ and, most importantly because the law violated ‘fundamental’ women’s rights. The court found the statute ‘an intrusion on constitutionally protected areas ... women’s rights to life, to control over their own bodies, and to freedom and privacy in matters relating to sex and procreation.’ This decision overturned the state’s law and made abortion legal. Several doctors performed abortions to make the point. Doe v. Scott was appealed and ten days later, the decision was enjoined by the U.S. Supreme Court and became illegal again. The Supreme Court ultimately took up Texas and Georgia abortion cases rather than Doe v. Scott, but it should be noted that the Illinois team shared their arguments and method with other attorneys and that the decision in the Illinois case strongly influenced the Supreme Court’s final decisions.
Sadly, abortion deaths occurred again. To obtain an abortion, most women had to find an illegal underground practitioner (many of whom were safe and medically trained), travel out of state to New York where abortion was legalized in 1970 by the state legislature, or attempt to induce their own. Some flooded into Cook County Hospital emergency room with excessive bleeding and injuries; a few died.
Local prosecutors also made it clear that they would enforce the criminal abortion law. Chicago authorities searched the University office of a rabbi and who worked with the Clergy Consultation Services (CCS) — a group of religious men and women, ministers, pastors, and rabbis who helped women seeking abortions by giving them referrals to safe doctors — and questioned the CCS leader. The Illinois Supreme Court also intervened in the medical practice of therapeutic abortions (legal abortions done by doctors for medical reasons) by deciding that the increasingly important psychiatric reason for abortion — the danger of suicide — was not permitted. Doctors and hospitals were on notice that they might be investigated, arrested, prosecuted and in danger of losing medical licenses and reputations. Access to abortion chilled.
Chicago police also raided a safe abortion clinic that had been running for several years by a group of activist feminists, now known as ‘Jane.’ Police arrested nearly fifty people seeking abortions, three in the middle of an abortion procedure, and seven Jane members. By 1972, however, these women had strong support for their work to bring the law into line with actual practice. Feminists, doctors, and religious leaders all advocated for the legalization of abortion.”
If and/or when Roe v. Wade is overturned, Illinois will continue to provide abortion access. In state history, has there ever been a formidable campaign to reverse it?
Reagan: “Immediately following the Roe v. Wade decision, the Illinois state legislature and local municipalities passed various laws to criminalize abortion and restrict access. These were repeatedly found to be unconstitutional. Those laws remained on the books in Illinois until very recently and is why the repeal of all such laws by the Illinois Reproductive Health Act is so important. If Roe v. Wade is overturned, Illinois will not become one of the states that immediately goes backwards and criminalizes abortion. Instead, Illinois has ensured that abortion remains legal in this state. It has also expanded reproductive rights by requiring that state health insurance cover abortions. This is particularly important for poor women (and disproportionate numbers of women of color) who receive their health care through Medicaid.
The anti-abortion movement has long rallied to criminalize and restrict abortions — through legislation as well as harassment and violence at abortion clinics. It succeeded in getting a parental notification law passed in Illinois in 1995 in the name of protecting young women after the U.S. Supreme Court allowed an array of state restrictions on abortion that it considered acceptable, that were not ‘undue burdens,’ (Casey, 1992). This law required that minors notify a parent about planned abortions or get permission through a ‘judicial bypass.’ If someone could not tell a parent — whether because they were afraid of violent responses, being kicked out of their house, their parents didn’t live with them, or because they wanted to protect parents already under stress with, for example, cancer — then she/they had to speak to a judge in a local courtroom about their pregnancy and life to obtain the paperwork needed to obtain an abortion.
This would be scary for anyone. Few people ever see a judge in their entire lifetime and no one goes to a public courtroom with security guards and others to talk about their private life and sexuality. Yet these parental notification laws required people under 18 to do exactly that. The point of these laws was to frighten young women and force them to talk with parents regardless of potential danger or the privacy of their own lives.
The truth is that the vast majority of young people who seek abortions do tell a parent — often their moms — or other close relatives. But some really can’t or don’t want to for the above reasons. When the law went into effect in 2013, the American Civil Liberties Union (ACLU) of Illinois assisted minors who sought a judicial waiver of parental notification. Of the approximately one thousand minors the ACLU assisted between 2013-2020, they learned that they most feared being kicked out of the house or being forced by parents to carry the pregnancy to term (40% each). Unknown numbers who shared the same fears found the judicial process so difficult that they told their parents and faced the consequences.
This past fall, the state of Illinois led the nation and repealed the parental notification law. It is the first state to repeal this law, a law designed to make it harder for people under 18 to obtain abortions by adding delays—and thus the expense of terminating a pregnancy — and by threatening their well-being, health, and safety. Repeal of the parental notification law was essential for Illinoisans and for the many people who will be coming to Illinois from other states for safe and legal abortions.
Every state that borders Illinois already highly restricts abortion access and, if Roe is overturned as expected, will further restrict and re-criminalize abortion. The Guttmacher Institute estimates a 9,000% increase in patients seeking abortion in Illinois if Roe is overturned. Illinois will be extremely important for ensuring reproductive freedom and health care for many.”
Until next time ...
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