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What a 1978 trial could tell us about future criminal abortion cases

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Forty-four years ago, a college student lying semiconscious in a hospital bed confessed to police that she had self-induced an abortion: “After being told my pregnancy at 22-24 weeks was too advanced for a safe abortion, I attempted to perform the abortion myself. I put a knitting needle in my uterus … I had no way out. I felt like dying,” she said, according to media reports at the time.

In 1978, the college student, 22-year-old Marla Pitchford, was indicted by a grand jury for manslaughter and performing an illegal abortion. According to Kentucky law — which is still in effect — the performance of an abortion by someone other than a licensed physician is a felony, with a penalty of 10 to 20 years in prison.

Pitchford was ultimately found not guilty by a jury by reason of temporary insanity, but the experience was harrowing for her and her family, news outlets reported at the time. The prosecution was thought to be one of the first times in U.S. history that a woman was on trial for self-inducing an abortion, but it certainly has not been the last.

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My sister, attorney Flora Stuart, represented Pitchford in her trial, and I was also present in the courtroom. Those memories are still relevant today, as the right to abortion protected in Roe v. Wade could be overturned or weakened this summer, leaving the possibility open that states will carry out similar trials. In April, the Kentucky legislature passed the most restrictive abortion law in the nation, banning abortion after 15 weeks of pregnancy with no exception for rape or incest. A federal judge issued a temporary order that has blocked the abortion law from taking effect.

As abortion rights hang in the balance, I revisited the Pitchford trial by interviewing my sister about the case — and what could come next.

This interview has been lightly edited for length and clarity.

Q: Tell us how you began representing Marla.

A: As the only female attorney at that time practicing law in the courts in Bowling Green, I felt an immediate kinship with this young woman who couldn’t afford an attorney. Marla’s cause became my cause.

Q: Tell us about Kentucky law under which Marla was indicted and how you handled her defense against the manslaughter charge.

A: The original bill — KRS 311.750 — became law in 1974 in Kentucky. It was drafted by several right-to-life attorneys.

This was the first time in Kentucky and the nation that a woman was prosecuted for performing an abortion on herself, to my knowledge. There was no precedent for this law because the law had never been enforced until 1978 against a woman in Kentucky.

Kelly Thompson, my co-counsel in the case, and I obtained dismissal of the original charge of manslaughter as it violated Roe v. Wade, which gave women the constitutional right for an abortion until viability — about 24 to 28 weeks. Judge David Francis dismissed the manslaughter indictment, leaving the charge of performing an abortion without a licensed physician.

Q: I well remember the excitement in the courtroom when the verdict came in. To what do you attribute your success in the jury’s arriving at a verdict of not guilty?

A: The prosecution relied on Marla’s confession she had given the morning after the abortion at the hospital. As the prosecution unfolded its evidence, Marla wiped back tears.

We did not contest the charge that she performed the abortion without a licensed physician, but instead relied on the insanity defense. We presented the tragedy of a young woman who had dreamed of wearing a white wedding gown rejected by her boyfriend. I reminded the jury that never before in the history of this nation had a female been put on trial for an abortion of this kind. By then the courtroom was packed with major television networks covering the trial, along with reporters from Time and Newsweek.

Although this was not accepted by some pro-choice groups who wanted this to be a trial about women’s rights, I presented the defense of “temporary insanity,” which required proof of her state of mind at the time she performed an abortion with a loss of cognitive function.

Psychiatrist Lawrence Green testified on her behalf that she was not cognitive at that time and that it was, in fact, an attempt at suicide.

Time magazine likened this to a morality play rather than a criminal trial with the sobbing 22-year-old defendant who I had described in my closing argument as resembling Nathaniel Hawthorne’s “Hester Prynne,” who had to wear the letter A and bear the shame and humiliation. My final question for the jury was: “Can you deem a greater punishment for Marla than Hester received in the 1600s?”

The acquittal of Marla by reason of temporary insanity was well-received throughout Bowling Green, the nation and, in fact, the world. I hoped at the time that this would be the last time an overzealous prosecutor would attempt to imprison a pregnant woman under these circumstances.

Q: How do you think a case like Marla’s could be played out in courts across the country if Roe v. Wade were overturned?

A: If Roe v. Wade were overturned, prosecuting women for self-inducing an abortion would likely become commonplace. The punitive nature of some of the laws that have been passed in Texas and other states would lead to women performing abortions on themselves.

In his draft opinion, Supreme Court Justice Samuel A. Alito Jr. opined that there is no constitutional right to abortion, leaving the states to regulate as they desire with the exception to protect the life of the mother. This opinion is not final and was only a draft, but it is this constitutional right that protects women from being prosecuted prior to viability in a pregnancy. Had Marla been convicted of performing the abortion without a licensed physician, it is likely that with Roe v. Wade, she would have won on appeal as she was still within the period to obtain a legal abortion.

Q: What does Marla’s case teach us?

A: Marla was typical of a young woman alone and desperate with a pregnancy where either she could not support the child or was left to raise the child alone without a spouse. My own experiences have helped me understand the plight of women with an unwanted pregnancy. At 19, I was left in similar circumstances, but because of my personal beliefs, I chose to have the child and raise her as a single mom. It is not easy having to juggle a job with no one to share the responsibilities of raising a child. I put myself through law school as a waitress on food stamps and welfare as a single mom.

The psychological impact on women with an unwanted pregnancy cannot be overstated. Women who have the opportunity to obtain a pill for a quick abortion by traveling out of state will be able to terminate their unwanted pregnancy. Those women without the means to do so or the emotional stability to take action in time will be left either giving a child up for adoption or raising the child by themselves.

If Roe v. Wade is overturned and legislatures in various states outlaw abortion protecting the sanctity of life, that protection should extend not only to the unborn, but the born. A single mom left on her own with little opportunity to earn a sufficient income to raise a child should be afforded day care and medical care so these children will have an opportunity to be successful.

Katherine Stuart van Wormer is professor emerita of social work at the University of Northern Iowa and co-author of “Women and the Criminal Justice System” (Routledge, 2022).