After Roe v. Wade: The Criminalization of Pregnancy

After her fetus was delivered (along with the six-inch knitting needle) at the hospital, Marla Pitchford was arrested. In June 1978, the Bowling Green, Kentucky grand jury indicted her for manslaughter and performing an illegal abortion.

According to a recently passed Kentucky law to regulate the practice, an abortion had to be performed by a licensed physician if the woman was pregnant for over three months. Marla had been 20 to 24 weeks pregnant. She faced a prison sentence of ten to 20 years.

Marla Pitchford was a college student, 22 years old, quiet-spoken, and from a conservative farming community. At the end of the summer, she would walk away from the Warren County courthouse a free woman. But the path to get there would not be easy—not for her, her family, and not for the defense attorneys.

That summer of 44 years ago, my sister, Flora Stuart, her attorney, told me of the tragic circumstances that had prompted the young woman, pregnant and rejected by her fiancé, to take such drastic action. As it turned out, this prosecution of a woman for a self-induced abortion was the first known case in U.S. history. And the trial was to lead to national press coverage such as Bowling Green had never seen.

This is the backstory in a nutshell: Engaged to be married, Marla unexpectedly discovered she was pregnant. When she told her fiancé, he blew up at her and insisted she get an abortion, which she did not want. Finding that she was 20-24 weeks pregnant, the clinics in Louisville and Nashville turned her down. After a wild outburst by her fiancé, Marla grabbed the knitting needle in her sewing kit and plunged it into herself.

A few days later, after she almost died of sepsis, a nurse contacted the police. On being indicted by the grand jury for a felony, Marla arrived at the office of the only practicing female attorney in Bowling Green—Flora Stuart.

The Legal Significance of Roe v. Wade

Fast forward to 2022. As the U.S. Supreme Court was on the brink of overturning Roe v. Wade, my sister and I revisited the historic Pitchford trial. In today's context, I asked my sister how her representation of Marla was shaped by the landmark decision Roe v. Wade that had passed a mere five years before the trial.

Of key significance to the defense was the issue of personhood. The 1973 Supreme Court ruling that the fetus was not a person restricted not only the very language used in the trial but also led to the dismissal of the charge of manslaughter.

Now that abortion is no longer considered a right, individuals who perform abortions outside of the law can now be charged with manslaughter and homicide by overzealous prosecutors.

The Psychological Dimension

The psychological pain that Marla endured was described in depth by her psychologist and by the court-appointed psychiatrist. Marla, who had dreamed of marriage and having the baby, was thrown into a fit of hysteria after her boyfriend had rejected her.

Drawing on this evidence of Marla’s state of mind at the time she committed the act in question, the defense was able to successfully argue she was not guilty by reason of temporary insanity. (This plea of temporary insanity had been famously used only one year before by the public defender in the so-called “burning bed” case in which the accused openly admitted she had set her abusive husband’s bed on fire as he slept.)

The trial was for Marla a harrowing experience as she was forced to listen to the police officer reading her confession and to the disturbing medical details of the abortion and delivery of the fetus. As aptly described in Time magazine: "I felt like dying. It looked like a morality play, not a criminal trial. The sobbing 22-year-old defendant resembled Nathaniel Hawthorne's Hester Prynne, who, as defense attorney Flora Stuart reminded the jury, 'had to wear the letter A and bear the shame and humiliation.'"

Lessons for Today

Since the 1970s, the political clout of anti-abortion groups has grown exponentially and out of proportion to their numbers. According to the Pew Research Center, this has happened even though most Americans believe that abortion is a legal right.

Laws to restrict abortion and to protect the fetus have been passed across the states, and women have been punished under laws not even intended for pregnant women when their personal behavior has led to harm to the fetus. Peer-reviewed research by the National Advocates for Pregnant Women has documented over 1,200 arrests of women for charges such as illicit drug use or child abuse of the fetus since 1973. The charges were dropped in most of the cases due to conflicts with state and federal law.

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The prosecution of women for self-induced abortions can be expected to rise as more women living in states with abortion bans decide to end their pregnancies on their own. Medication abortion is the most common form of abortion today, a process that some state legislatures are expected to attempt to restrict.

The prosecution of Marla Pitchford was the first time in the U.S. that a woman was on trial for performing an abortion on herself. But it will likely not be the last.