The state fighting to dismantle abortion rights has a long history of permissive abortion laws

by Isabelle Taft, Mississippi Today
June 8, 2022

When Mississippi asked the U.S. Supreme Court to overturn Roe v. Wade, it argued that a long tradition of state restrictions on abortion in the U.S. “defeats any claim of a deeply rooted right” to an abortion. 

Yet for all but 21 of its 156 years as a state prior to Roe, Mississippi law technically permitted abortion for any reason until about 16 weeks of pregnancy.

Mississippi Today could find no published scholarship on the history of abortion law in Mississippi specifically, and national histories on the topic generally make little reference to the state. 

This story is based on interviews with historians of abortion law and politics, stories published in Mississippi newspapers in the 19th and 20th centuries, books and articles about abortion law in the U.S., vital records held in the state archives, and a review of Mississippi laws.  

Decades after almost every state had banned the procedure at any stage of pregnancy, Mississippi’s law continued to follow the practice in place at the country’s founding: Abortion was a crime only if the fetus was “quick,” or had been felt to move, typically around four months of pregnancy. Mississippi did not update that law until 1952, though people were still prosecuted for abortions prior to that, usually in cases where the woman had died.

The role of abortion in the U.S. decades ago sits at the center of arguments about its future. In his leaked draft opinion, Justice Samuel Alito sided with the state’s reading of history when he wrote: “An unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”

But if the Court’s final ruling in Dobbs v. Jackson Women’s Health Organization is similar to Alito’s draft, Mississippi’s legal restrictions on abortion today will become tighter than they have been at almost any point in its history. The state’s trigger law will ban abortion in all cases except those involving rape and a threat to the mother’s life.  A separate law passed in 2019 banning abortions after six weeks contains no exception for rape.

The evolution of state law after Roe in 1973 mirrors the national rise of the pro-life movement as a powerful force in Republican politics. A movement that was once predominantly Catholic and Northern became largely evangelical and Southern. 

A movement that was once on the defensive in Southern state legislatures, including Mississippi’s, began winning one victory after another across the South and Midwest. 

Mississippi, for decades an outlier in permitting many abortions, became in 2021 the state that asked the Supreme Court to overturn Roe. 

“If there’s a person in Mississippi who thinks that by virtue of these laws going into force after Dobbs, that we’re returning Mississippi to the good old days … they’re wrong,” said Aaron Tang, a professor of law at the University of California, Davis who has researched the history of state abortion laws. “The substantial history of Mississippi throughout its existence as a state has been basically what Jackson Women’s Health Organization is willing to do: a procedure up to 16 weeks.”

At the time of the founding of the United States, abortion was legal in every state until the “quickening,” following the English common law tradition. Because there was no medical way to prove a pregnancy until the fetus had moved, a woman could claim she needed to “restore” or unblock her menstrual cycle, and no one else could insist she was actually pregnant. 

“The popular ethic regarding abortion and common law were grounded in the female experience of their own bodies,” the historian Leslie J. Reagan wrote in her book “When Abortion Was A Crime.”

Mississippi passed its first law on abortion in 1839: “The wilful killing of an unborn quick child, by any injury to the mother of such child, which would be murder if it resulted in the death of the mother, shall be deemed manslaughter in the first degree.”

The law was part of an early wave of such legislation across the country from roughly 1820 to 1840. The historian James C. Mohr wrote that such laws were usually passed as a part of larger revisions to the state criminal codes; abortion itself was not a public issue.

Mid-19th century newspapers treated abortion as a practice that did not involve Mississippians – or, at least, white Mississippians. After the Civil War, as white Mississippians resisted Reconstruction and Black political empowerment, state newspapers sometimes presented abortion as a symbol of Northern immorality. 

In 1867, the body of an infant was found near the river Under the Hill in Natchez, partially buried in the sand, wrapped in an apron and tied to two bricks. 

“We sincerely hope that the abortion and child murdering mania which rages in the New England States and in New York to such a fearful extent has not reached us,” the Natchez Democrat opined. 

Racism was also part of discussions of abortion in Mississippi, as it was around the country. 

“Notwithstanding the North makes pretensions to all the purity of the land, and essays to look down upon the South in her barbaric practices, yet infanticide the most inexcusable and disgusting, as well as most horrible of all crimes, is of common occurrence there, while with us it is almost unknown, and when known is confined almost exclusively to the Negroes,” wrote a columnist for the Vicksburg Post in 1870. 

By 1868, when the Fourteenth Amendment was adopted, Mississippi was one of only three states with a law against abortion that nonetheless explicitly permitted it prior to quickening. (The others were Arkansas and Minnesota.) Six states had no laws on abortion. 

In the draft opinion leaked in early May, Alito claims that the remaining 28 states prohibited abortion at all stages, and thus that the Fourteenth Amendment – in which the court has located a right to privacy – cannot be understood to protect a right to an abortion. 

Other historians disagree with that claim. A brief filed in Dobbs by the American Historical Association reported that pre-quickening abortions were legal in 11 states and less heavily punished in seven more by 1868. Tang claims that the true number of states that departed from the common law tradition to prohibit abortion at all stages of pregnancy by the time of the Fourteenth Amendment was actually 16.  

And before the 20th century, there was no way to prove a pregnancy before the quickening, so abortion laws pertaining to a “pregnant woman” in practice were not always substantially different from laws that applied only to post-quickening abortions.

A Mississippi Supreme Court decision in 1898 rejected the idea that fetuses were people, citing the common law. 

A Pontotoc woman named Emma Prude was indicted for ending her own pregnancy under a state law prohibiting giving medicine to a woman pregnant with a “quick child” to end the pregnancy. The Court not only determined that the statute didn’t apply to a woman who ended her own pregnancy, but also wrote that “An infant in the mother’s womb … is not considered a person who can be killed within the description of murder,” even if the pregnancy was quick. 

However unusual Mississippi’s law was by 1868, it was much more of an outlier 50 years later. 

In the late 19th century, states continued to pass stricter abortion laws, largely at the urging of doctors and the American Medical Association. The movement was led by Dr. Horatio Storer, a Boston doctor who believed fetal life began at conception, and that abortion was murder at any stage of a pregnancy. 

Historians say the physician-led anti-abortion movement painted midwives, many of whom were Black women, as “abortionists” in an effort to position themselves as better trained and morally upright – and win over more patients. Storer was also concerned that white Protestant women were using abortion to limit the size of their families, while he believed recent immigrants, many of whom were Catholic, regarded abortion as immoral.

“Of the nine States that had not yet criminalized abortion at all stages (as of 1868), all but one did so by 1910,” Alito wrote. That state was Mississippi. 

In 1909, state lawmakers considered a proposal to ban abortion at all stages of pregnancy, which had been backed by the Mississippi Medical Association. An abortion that ended a pregnancy would be manslaughter. 

“An infant in the mother’s womb, whether viable or not, is hereby declared a human being,” the legislation said. 

Yet the proposal didn’t become law, for reasons Mississippi Today couldn’t locate. 

Mississippi legislators considered another total abortion ban in 1918 but would not actually pass one until 1952. 

The lack of a ban didn’t mean that abortion was universally regarded as normal or morally acceptable. But it did mean, as one dismayed headline in the Jackson Daily News in 1911 put it, “Abortion Not a Crime.”

The article explained that a group of physicians had investigated an alleged abortion and contacted local law enforcement. But they found that there could be no prosecution because there was no law against an abortion before “practically four months pregnancy.” 

People facing criminal charges for performing an abortion that resulted in a woman’s death could try to use this point in their defense. 

Dr. F. E. Lee, for example, never denied that the abortion he performed in 1916 had led to the death of a young woman named Mary Miller. Instead, he claimed the procedure hadn’t been a crime. 

At his trial in Corinth in 1920, Lee’s lawyer said that because Miller’s pregnancy was not “quick,” he had violated no law by performing her abortion and should not be held responsible for her death.

The prosecutor rejected that argument, but not that reading of the law. He acknowledged that the “original undertaking was not condemned by the law,” but said the doctor was still liable for Miller’s death.

Lee was convicted of manslaughter and sentenced to 20 years in the state penitentiary. But if Miller’s procedure had gone as intended, law enforcement would have had no grounds to get involved – making Mississippi an anomaly in the U.S. at the time. 

Late in the evening on July 25, 1945, a former policeman named B.J. Jennings heard a car speed over the bridge above his houseboat on the Pearl River, not far from downtown Jackson. He saw someone toss something out of the car and into the water. 

Later, he found a purse and pair of shoes in the river and called the police.

His call helped law enforcement piece together an explanation for what had happened to 18-year-old Betty Massey, a waitress at Abe’s Cafe who had been missing for days. Her body was found a few days later, floating in Rhodes Creek near Terry. Police arrested Dr. B.F. Johnson and said Massey had died in his clinic following an illegal abortion. 

Massey’s death became a media event. Her portrait ran on the front page of the Clarion-Ledger, where stories suggested she was a tragic symbol of the dangers facing young women during the social tumult of World War II. The newspaper reported that the father of her baby, a soldier, had written her “a nasty letter … in which he relieved himself of any responsibility.”

Massey, a white woman, was a “small-town girl working in Jackson,” and a member of “a prominent Delta family.” One story described “perhaps the most tragic point” in her death: Her boarding house at 313 State Street had been located just two doors down from the state office charged with helping unmarried pregnant women. 

Their case workers could have helped her “overcome some of her fears, dreads, and anxieties and face the reality of her situation so that the desire to destroy herself and others is allayed,” a representative said.

Some news stories about the doctor charged in Massey’s death mentioned that he had previously been convicted of manslaughter in the death of a Black woman named Etta Perkins following an abortion. Her life and case got little attention on its own. 

He had appealed the conviction and was out on bond when he performed Massey’s abortion, the papers reported. 

For Massey’s death, prosecutors chose a harsher charge — “depraved heart murder.” Johnson ultimately pled guilty to manslaughter and was sentenced to 16 years in prison. 

By the time Perkins and Massey died, abortion in the United States – though illegal at all stages of pregnancy in most of the country – was becoming safer. Abortion was the official cause of death of about 2,700 women in 1930, accounting for a fifth of all pregnancy-related deaths that year, according to the reproductive rights nonprofit the Guttmacher Institute. In the 1940s, the development of antibiotics reduced deaths by making it easier to treat infections after abortion. In 1950, about 300 women died following an abortion. 

It’s not clear how many people died following abortions in Mississippi in the 19th and 20th centuries. Vital records held at the state archives did not list abortion as a cause of death until the 1920s, and in some years after that, all pregnancy-related deaths were tallied together. 

Mississippi Today reviewed records from 1927 through 1940 that showed abortion was listed as the cause of death for roughly 30 to 50 women each year. More Black women than white women died: In 1930, for example, abortion was the cause of death for 15 white women and 26 Black women. 

In 1952, the Mississippi Medical Association asked the Legislature to pass a stricter abortion law. Lawmakers obliged, prohibiting the procedure at all stages of pregnancy. 

The new law said someone who provided an abortion could be charged with manslaughter and sentenced to one to 10 years in prison. If the woman died, the crime was murder. The only exception was to save the life of the mother, and the law required two doctors to make that determination in writing. 

Pro-life advocates often point out that women were rarely prosecuted for their own abortions prior to Roe. Historians largely agree, but that fact doesn’t account for the public shame and pressure to cooperate with law enforcement women could endure during trials of doctors and partners, Mary Ziegler, a law professor and expert on abortion history, has written. 

Mississippi’s 1952 abortion ban didn’t explicitly prohibit such prosecutions. Mississippi Today found that at least one woman was arrested and charged with her own attempted abortion after she refused to cooperate with the investigation of two men involved.

In September 1962, Jackson police got a tip: An abortion was set to take place in a few days at a Travel Inn Motel on Highway 51, just outside of the city. Officers waited outside Room 152. They would later say they could smell a chemical odor, like a powerful disinfectant, wafting out of the room, and heard the clanking of metal instruments or furniture being moved. 

When they opened the door, they found a woman named Mary Ann Aiken hiding in the bathroom, covered in a sheet and holding her skirt in her hand. She was arrested for participating in her own abortion and taken to a hospital for a medical examination. 

Aiken, whose name was often spelled Mary Ann Eakin or Mary Ann Eakin Johnson, refused to cooperate with the authorities.

During the trial of Leo Hall, one of the men charged with the illegal abortion, Aiken denied she had attempted to get an abortion, frustrating then-District Attorney Bill Waller, who said he had a signed statement from her declaring otherwise and that she could also be charged with perjury. Aiken also said she was a prostitute and had had sex with Hall, who reportedly had ties to the Dixie Mafia, perhaps helping to explain why she would not want to testify against him. 

The trial for Aiken herself was delayed because she had to give birth – the abortion had not been successful. She pled guilty to the crime of attempted abortion. 

The state could also expend significant time and resources investigating suspected abortion providers. 

In May 1968, a Baton Rouge woman met a doctor in a Jackson motel room. After he agreed to perform an abortion and she handed him $200 in cash, Mississippi Highway Patrol agents who had set up the sting burst into the room and arrested him. 

He was eventually acquitted by jurors who were unconvinced that the woman had ever been pregnant.

By the mid-1960s, discussion of abortion nationally was intensifying. Feminists called for abortion to be legal and free. Professional organizations of doctors, attorneys and psychiatrists began arguing for more liberal abortion laws. 

The 1967 Mississippi Boys’ State convention – attended primarily by well-off white high school boys who hoped to become state leaders – passed legislation making abortion legal when the pregnancy could affect the mother’s mental or physical health and when the fetus would be born with a serious deformity. Though it wasn’t actual legislation, some observers saw it as an indicator of where public opinion was heading. 

“In a few years these same boys will be of voting age, and in the not too distant future some of them will hold real offices in state government,” noted an opinion columnist in the Hattiesburg American. 

In 1966, Mississippi became one of the first states to add a new exception to its abortion ban, allowing women to get an abortion if they said they had been raped. Unlike Mississippi’s 2007 trigger ban, the law did not require them to report the rape to law enforcement. 

Some of opponents’ points echoed pro-life claims today: that only God could make a decision to end a pregnancy, and that a woman who got an abortion could feel guilty later in life. 

Supporters’ main arguments were based on racist fears around sex between Black men and white women. The Daily Herald of Biloxi reported that the measure passed the House after a speech by Rep. George Payne Cossar of Tallahatchie, who told his colleagues that pregnancy could result from “rape between the races.”

“Are you going to force this poor woman to carry this burden?” he said. “This bill is designed to prevent disgrace in a family.”

As of early 1971, abortion was legal in five  states – New York, Alaska, California, Hawaii and Washington. 

That year, a Hattiesburg lawmaker thought Mississippi should join the list. Rep. Robert Lennon introduced a bill that would make abortions legal up to 24 weeks of pregnancy. 

“Abortion must be considered a medical procedure and a private one between a licensed physician and his patient,” he told the Clarion-Ledger. “It should not be a part of our criminal statutes.”

The bill provoked a furious outcry. Catholic leaders in the state urged their 90,000 parishioners to lobby against it. One opponent in the Legislature called it “a possibly well-intended attempt to legalize the murder of innocent babies.” 

The bill didn’t make it out of committee, and Lennon didn’t run for reelection. 

Two years later, the Supreme Court’s ruling in Roe provoked a more muted response in Mississippi. Religious leaders were split: Catholics and some in other denominations told local newspapers they saw the ruling as a sign of moral degradation. 

Rev. J.C. Harris, pastor of a United Methodist Church in Biloxi, called the ruling “wonderful.”

“I believe a woman and her doctor should do what she thinks fit.”

Man-on-the street interviews captured a range of views among ordinary Mississippians, too. Some echoed Harris’s perspective. 

One Delta valedictorian used her high school graduation speech to warn that Roe would lead to “garbage cans full of aborted fetuses.”

Some states actively resisted the high court’s ruling: Rhode Island didn’t have an abortion clinic until 1975. But Mississippi and most other Deep South states did not, said historian Daniel K. Williams, who has researched the pro-life movement. 

“In Mississippi at the time, the pro-life movement didn’t really have a very strong presence because in the early 1970s the pro-life movement was very Catholic and very Northern, and Mississippi had a pretty low Catholic population, considerably lower than neighboring Louisiana’s,” said Williams, a professor of history at the University of West Georgia. “So, as a result, it was somewhat unclear in the early 1970s which direction Mississippi would go on abortion.”

An editorial in the Greenwood Commonwealth published the week after the ruling sounded relieved to declare that the Court had “essentially resolved” the legal question over abortion.

“The Supreme Court has very broadly liberalized abortion law and in so doing brought years of controversy and litigation to an end,” the editorial concluded. 

Nearly 50 years later, the state of Mississippi would claim before the Court that Roe was “egregiously wrong” and based on a flawed reading of U.S. history.

Left unexplained was Mississippi’s own unusual place in that story. 

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.