The main issue in my current mystery, “Dark Justice,” concerns a woman’s right to choose what to do with her body. Ironically, it doesn’t come out in court, as my female barrister, Laura de Force Gordon, understands the male jury system at that time, and she is facing prejudice. Instead, she applies rather genius legal maneuvers to defend her midwife client, accused of manslaughter in the case. Abortion is against the law, and would be for many years, but women were still savvy about the main issues, despite being held down by Victorian laws and societal mores.
That she is aware, however, of the underlying issue of a woman’s inherent right to choose is made clear by me in her exchange with Clara Foltz’s daughter, Trella Evelyn, during their personal “practice argument” at home:
“I cannot tell you much, as my attorney-client privilege is presently in effect. All I have is the police report and a personal journal found on a bench in Golden Gate Park that is allegedly written by the deceased victim, Penelope Farmer. However, since the press has already been buzzing around the facts at hand, I can tell you my more general stratagem.” Laura pushed a lock of black hair from her forehead.
Trella envied the woman’s impetuousness. She was so unlike her mother, who used her feminine wiles to throw the opponent off-guard. Laura came at her opposition like a bull defending his herd.
“Let me hear your plan. I am certain you have an excellent one,” she said.
“As you and I know, the criminal justice system has made the act of aborting a fetus a crime, but not many cases have been pursued beyond manslaughter because of the very difficult mens rea of deliberate intent that must be proved. However, this case has been chosen as a cause celebre for the American Medical Association. Thus, according to the newspapers, I shall be contending with a professional witness. Dr. Horatio Storer will be the State’s leading expert.” Laura scowled. “Not only must I defend Mrs. Fulbright’s actions in order to prove that Miss Farmer died from a spontaneous miscarriage that caused hemorrhaging, and not from Fulbright’s negligence, I must also address Dr. Storer’s accusations that any type of abortion is placing any pregnant female’s life in immediate danger.”
“I know you and mother differ on this. Whereas you are a socialist who believes in the collective rights of women to choose to have an abortion, mother tends to side with other suffragists, like Mrs. Anthony and Mrs. Stanton. They believe the act of abortion to be a mortal sin, and that one must first address the problems of women’s rights and poverty before allowing prostitutes and other poor women to place their bodies at risk simply because they may be inconvenienced. Many suffragists say women die at the rate of thirty percent from surgeries and abortifacients.” She was estimating her facts from what her mother had told her, but she wanted to play the good advocate.
“Don’t you see? That’s the point. I plan to refute this plan of the prosecution to make the case about morality and sin. Our Constitution freed the slaves because they were deprived of their rights. Women, of all races, were not given that same privilege. If they put Storer on the stand to advocate his plan to force women to have all their children in his hospitals, then I shall rebut him by showing how forcing women to have children is a violation of personal privacy. Women, as citizens, should have the same constitutional protection as men and freed male slaves under the Fourteenth Amendment. The State, by forcing women to have children, is depriving them, without any trial, from having a chance at a healthy life, the liberty to freely choose when and with whom they can become pregnant, and the personal property that they might have earned had they not been forced to stay at home in order to raise these children.”
She knew her mother’s favorite rebuttal to this argument, so she decided to use it.
“However, the abortionist is often a profiteering scoundrel. Remember Madame Restell, in New York City? Since many of her clientele were from the privileged class, often married to Wall Street tycoons and other merchants, she would use the privacy issue to her advantage. She secured many so-called ‘loans’ from former patients, which were never returned. This amounted to nothing less than blackmail.”
Laura nodded, but her frown showed she was ready with a rejoinder.
“Again, you have your mother’s naivety in these matters. I contend that it is the very illegality of abortion which makes the practice susceptible to avarice. If we allow men in the medical profession, the so-called ‘regulars,’ like Dr. Storer, to gain control over women’s reproductive rights, then the greedy exploiters like Restell will thrive. Only when women have legal control over their wombs will justice ever be served!” Laura raised her fist in the air.
“But what is your societal argument for this grand defense of women’s rights?” She leaned forward in suspense. She knew this was Laura’s first-ever case concerning this controversial topic.
“Thank you for asking. Before the industrialization of America, in the Seventeenth and Eighteenth Centuries, women took care of family planning legally, in their own ways. Men did not intervene because women were protected by a wider support group of other women. When the cities began to isolate and separate men and women, these protections of privacy and female support fell apart, and women began to be exploited—both at work and in the bedroom. I therefore contend that the pregnant woman of today has become a victim of both the mental pressure of industrial growth and the wanton greed of male lust. These males have now turned on their women to force them into pregnancies that they cannot afford because of their legal and economic isolation and victimization.”
As you can see, these women are much more “modern” in their legal sensibilities toward the issue that led, eighty-five years later, to the Supreme Court’s decision in Roe v. Wade.
This week, the Supreme Court is ruling on a case that restricts a woman’s ability to gain access to an abortion clinic in Louisiana. How that case is decided might be a bellwether as to how the court may decide later, in a case to overturn Roe and send us reeling back in time to the era before 1972–perhaps even to the practices I cover in my novel set in 1887.