Through the Reproductive Lives of Women: On Cassia Roth’s “Miscarriage of Justice”
During the Missouri legislature’s first session of 2020, Republican legislator Mike Moon introduced the anti-choice, fetal-personhood House Bill 1799. While much of the bill focuses on renaming and defining a fetus in terms of personhood in the style we have come to expect from fetal-personhood lawmakers, one particular clause stopped me cold. “Law enforcement officers, officers of the court, and any licensed or state regulated entities in the state shall affirmatively enforce” the ban on abortion in Moon’s bill. In the bill’s current form, it’s unclear how police and other arms of the state in Missouri, where some of the strictest abortion laws in the country are already on the books, would go about enforcing this law and what it would look like in practice. But it is clear that anti-choice legislators like Moon are attempting to criminalize people who seek out abortions and those who provide them.
When I first came across the bill, I was reading Cassia Roth’s A Miscarriage of Justice: Women’s Reproductive Lives and the Law in Early Twentieth Century Brazil. A story of what can happen when police and the state are given the power to intervene in matters of reproduction, Miscarriage of Justice weaves together a history of women’s reproductive lives at the nexus of patriarchal law and medical policy that resonates in our own alarming present. Roth tells this history largely through the experiences of women who were investigated for abortion and other methods of fertility control. By centering the stories of women rather than those of legal and medical authorities, Roth reminds us that laws made by men in the halls of government can have devastating outcomes for the women who must live within their bounds.
Cover, A Miscarriage of Justice: Women’s Reproductive Lives and the Law in Early Twentieth-Century Brazil by Cassia Roth, from Stanford University Press | Fair Use
Set in the city of Rio de Janeiro, Miscarriage of Justice examines how women’s reproduction became the platform upon which Brazil attempted to build a new society after the abolition of slavery in 1888 and the Proclamation of the Republic in 1889. To meet the needs of a new, expanding state, Brazil required good citizens, and women to reproduce and nurture those citizens and, in turn, the state. As a result, women’s reproductive lives came under the jurisdiction of the government and its institutions as a matter of nation building. The practice of fertility control, including contraception, abortion, and infanticide, was counterproductive to the expansion of the state, and consequently, the women who used fertility control and the people who provided it were surveilled and criminalized.
Despite the importance Brazil’s government placed on women’s reproduction, Roth shows that not much effort went into improving the social forces that influenced women’s choice to use fertility control. Many of the women who were investigated for practicing fertility control were already mothers, extremely poor, and precariously employed as domestic workers. Their employers didn’t want to employ women who had dishonored themselves by becoming pregnant out of wedlock, and some women had become pregnant as a result of an assault by their employers. Roth includes both abortion and infanticide in her definition of fertility control, since both were outcomes of similar decision-making under similar circumstances. The city provided little in the way of social safety net for poor women to have more children or for victims of rape to give birth to their rapists’ children, so many women turned to fertility control to navigate their lives.
With the reach of the police and public health officials into women’s intimate lives increasing, women continued to use fertility control over the course of the early 20th century because their everyday lives in poverty and the patriarchal world that they negotiated changed very little. Even when the dictatorial Getúlio Vargas came to power in 1930 and expanded public health services for women, poor women’s experience of reproduction and the criminalization of fertility control remained largely unchanged.
Roth’s history is one of embodiment, in which she places the stories of women and their lived experience of reproduction at the center of Rio de Janeiro’s medical and legal history. “I wanted to have this bottom up look at what it was like to give birth in the early 20th century,” Roth tells me. “Scholarship before has looked at how elites talked about mothers, how elites talked about women, how elites talked women’s sexuality, but it hasn’t really looked at how women themselves reproduced, experienced reproduction, raised their children.”
Using police records and court cases, Roth documents women’s experiences with reproduction in Brazil between the 1890s and 1930s. They are, like that of 18-year-old Mercedes dos Santos, stories of deprivation and desperation. Santos was a preta (Brazilian woman of African descent) domestic worker who gave birth in her employer’s home. She began to hemorrhage and was taken by ambulance to a public hospital, where physicians questioned her about having an illegal abortion. Before she died of a ruptured uterus, Santos confessed to the abortion and implicated her employer in the act. Since Santos was dead, she couldn’t be investigated, but the police did investigate her employer, another preta. The autopsy didn’t determine whether Santos had miscarried or undergone an abortion, and whether or not the alleged confession of dying woman was truth, we don’t know.
Both physicians and police played a role in surveiling and incriminating women for illegal fertility control. The police, untrained in medical matters and thus unable to tell the difference between fertility control and failed births, often investigated women who did not provoke abortion or commit infanticide but had actually suffered miscarriage or stillbirth. For instance, Roth opens the book with the story of 29-year-old Isalina Vieira, who gave birth to her baby on a hospital sidewalk after the attending physician denied her admission because the maternity ward was full. The baby died there on the sidewalk, and Vieira was taken by ambulance to another hospital. While the police officer who first attended the scene cleared Vieira of wrongdoing, his district police chief disagreed and opened an infanticide investigation against Vieira. The physician who denied her hospital entry, however, escaped any consequences for wrongdoing. Vieira’s case demonstrates that both incompetence of police in handling reproductive matters as well as social factors, such as women being denied medical care in childbirth, resulted in negative infant health outcomes.
Despite the intensity with which the state criminalized fertility control, very few women were ultimately sentenced for it. In many cases, women accused of abortion or infanticide were given lighter sentences or no sentences at all because authorities deemed guilty women to be out of their minds or suffering from postpartum insanity. The belief that women were naturally maternal beings was so deeply embedded in Brazilian culture that women who acted against that maternal nature by committing abortion or infanticide were seen as mad and, therefore, incapable of making rational decisions. As Roth shows, however, women who opted for abortion and even infanticide were quite rational in their decision-making. Without condoning the practice of infanticide, Roth helps us understand it as a rational choice shaped by restrictive social and legal circumstances imposed by the state.
While such committed belief in women’s maternal nature allowed many to escape sentencing, the infantilization of women has dangerous repercussions that have shaped reproductive rights today in Brazil and beyond. “That just again enforces the idea that women can’t make decisions for themselves, they don’t know what’s best for them, for their families,” Roth explains. “I think that’s really deep-seated in Brazil. That’s even the case in the U.S.”
Using similar logic from the Republican era, authorities in Brazil today are most likely to investigate abortion providers rather than the women who have abortions. Women who use fertility control are still cast as innocents under emotional duress, incapable of making rational decisions and falling prey to abortionists. Even if this reasoning provides a way around criminalization, “that’s a really dangerous way to take rights away from women,” Roth argues. “You can start with abortion rights, but if women are not in their right mind about having a child, do they know how to raise their children the best?” Ultimately, Roth says, infantilizing women in any of their decisions about reproduction expands male control in both the legal and medical realms.
Told with care and from a place of deep empathy, the heartbreaking stories in Miscarriage of Justice bring Brazilian women back into their own history, which has been told about them, but rarely through and with them. While a patriarchal legal system and medical institution tightened its control around women’s reproductive lives, Roth shows through these women’s stories that they wrested that control back in whatever way they could. Whether or not readers endorse the means by which women attempted to control their lives is much beside the point of the book because as Roth writes, “[W]omen in Brazil, and across the globe, will continue to [negotiate their reproductive lives], no matter the consequences.”
Image credit: Collection of obstetrical forceps in the Museum of the Department of Obstetrics of the Academish Ziekenhuis, Leiden, Holland (Welcome Collection | CC BY 4.0)
