Abortion in 1938 and Today: Plus Ca Change, Plus C'Est La Meme Chose
Richard W. Bourne
University of Baltimore School of Law
Southern California Review of Law & Women's Studies, Vol. 12, p. 225, Spring 2003
This paper analyzes Aetna Cas. & Sur.Co. v. Yeatts, 122 F.2d 350 (4th Cir. 1941) a case which arose after a botched abortion led to the death of a 17-year-old woman, Elizabeth Burton, in rural Virginia in 1938. The doctor-abortionist paid the woman's family wrongful death damages and then sought reimbursement from his malpractice insurance carrier, which declined to pay on the basis of non-coverage because the policy excluded claims resulting from criminal abortions.
The article opens with a lengthy narrative describing the circuitous route Ms. Burton had to traverse to "connect" with Dr. Yeatts, how he became an abortionist in a small southern town, and the sad and tragic details of her abortion and death from peritonitis caused by his sloppy medical ministrations in her behalf. The narrative is based on interviews with surviving family members of both the woman and the doctor as well as long-warehoused records and transcripts of the case as it unfolded in the aftermath of her death.
The paper describes the trial in detail. Despite overwhelming evidence that the doctor had in fact aborted her pregnancy and caused her death, the jury found for the doctor. Both the trial judge and the appellate court refused to order the verdict set aside and order a new trial on the basis that the verdict was against the clear weight of the evidence. The paper attempts to explain why the jury ruled for the doctor as well as why the court refused to set aside the verdict. The analysis concludes that the jury's decision involved jury nullification, a flat-out refusal to decide the case on the law and evidence, because the jury was uncomfortable with abortion law and did not want to drive the town abortionist out of business. This analysis is consistent with research indicating that in the period from 1850, when the first state statutes criminalizing abortion were passed, until 1973, when Roe v. Wade made abortions legal, juries routinely refused to enforce criminal laws against abortionists throughout the country. The only difference between these cases and Yeatts is that in the latter the jury was protecting the abortionist's pocketbook, not his liberty.
The discussion of the legal history of abortion policy in this country notes the historic ambivalence in Americans' attitudes toward abortion. This ambivalence led the country to criminalize abortions for nearly a century, while at the same time nullifying the criminal laws on the books, until Roe outlawed these statutes entirely, and it explains, in the post-Roe era, why polls show a majority of Americans believing that abortion is wrongful (one poll found a majority would characterize abortion as "murder") but nevertheless simultaneously give verbal assent to a laissez-faire policy permitting abortions to any women who need them.
Yeatts is a wonderful means of illustrating the point that, regardless of Americans' historic ambivalence toward abortion policy, when the chips are down juries are willing accept abortion as a necessary evil. In the decade preceding Roe, a reform movement had begun to decriminalize abortion services in this country; Roe, of course, eliminated the necessity for further legislative decriminalization. The principal argument decriminalizing abortion was the need to protect maternal health because of evidence that the alternative policy had created a dark and dank industry for "back alley" abortions subjecting women to unacceptable medical risks.
Elizabeth Burton's story is a poignant reminder of how maternal health was threatened when the abortion industry was driven underground and warns against legislative attempts to circumscribe the right of women to get abortion services when they feel pressed to get them.
Number of Pages in PDF File: 52
Keywords: abortion, family law, wrongful death, jury nullification, legal historyAccepted Paper Series
Date posted: September 4, 2003 ; Last revised: October 1, 2008
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