Preface

Sumit Guha, Co-editor, Modern Asian Studies

This Symposium introduces a new feature for Modern Asian Studies. The editors felt that while we continue to publish long form and deeply researched articles, we should also periodically highlight some of the most wide-ranging and widely read articles of the past five years and invite experts in other parts of the world to comment on their themes.

The first Symposium of this type addresses the issue of abortion and its regulation by the state. We therefore asked important specialists on different parts of the world to comment on the article by Professor Mitra Sharafi published by Modern Asian Studies in 2021. The Symposium is rounded off by a response from Professor Sharafi herself.

We are grateful to all participants for their prompt yet thoughtful contributions to this Symposium. We appreciate the insights that they have offered. We hope to continue this feature in later issues.

Comment on Mitra Sharafi, ‘Abortion in South Asia, 1860–1947: A medico-legal history’, Modern Asian Studies, vol. 55, no. 2, 2021, pp. 371–428

Melissa Feinberg, Rutgers University

As a gender historian who specializes in twentieth-century East-Central Europe (and whose published work on abortion concentrates on the country formerly known as Czechoslovakia), I wasn’t sure what to expect when I picked up Mitra Sharafi’s fascinating article on abortion in South Asia under British rule. In the article, Sharafi argues that the crime of abortion was rarely prosecuted in colonial South Asia due to a confluence of, primarily, local factors. As a scholar outside the field of South Asian history, I accepted her persuasive argument about the distinctiveness of the South Asian context. As a Europeanist, however, I was also struck by how many elements of this history seemed familiar. While I agree with Sharafi that local factors are often decisive in determining how abortion laws have been enforced, her article nonetheless brought home to me the ways in which abortion laws in the late nineteenth and twentieth centuries operated within a sometimes surprisingly small world.

As Sharafi notes, the Indian Penal Code’s (IPC) restrictive laws on abortion were part of a broader legal trend that included much of the European continent. As in the IPC, Habsburg Austria’s criminal code of 1852 made abortion a crime from the moment of conception. Inducing an abortion was punishable by up to five years of hard labour for the pregnant woman and anyone who assisted her. The German criminal code from 1871 was similar.Footnote ¹

In colonial South Asia, Sharafi writes, the IPC’s harsh laws on abortion were rarely enforced. Abortion was prosecuted almost exclusively when the pregnant woman died and even in such cases, only infrequently. Sharafi explains this lax enforcement as the product of multiple interlocking factors. The most basic problem, not unique to South Asia, was that abortion was almost impossible to detect if the woman had consented to the procedure and survived the process. Even when a woman died, it was difficult to prove an abortion had occurred. The other reasons Sharafi puts forward are all specific to the local context. In cases involving South Asian women, the racist attitudes of British colonial officials impeded their willingness to enforce the law. Colonial administrators imagined abortion was practised primarily by Hindu widows, who were traditionally forbidden to remarry and needed to hide any evidence of sexual activity to avoid dishonour and destitution. They saw these women as the victims of barbarous Hindu customs and were therefore reluctant to prosecute them. Another reason colonial officials were loath to prosecute South Asian women for abortion, Sharafi contends, is that they believed South Asian people were inveterate liars. With prosecutors discounting the testimony of South Asian informants, it was even harder to find evidence for the elusive crime of abortion. In addition, they were unable to rely on local physicians, who prioritized their confidential relationship with their patients and often refused to cooperate with the police. This tendency also made it more difficult to prosecute white British women suspected of abortion. In such cases, officials were also influenced by the particular circumstances of life for colonial administrators and their families in British India. Couples were often separated for long periods, increasing the potential for infidelity. Sharafi suggests that colonial officials who wanted to avoid the spectacle of white women on trial for attempting to cover up adulterous affairs or who hoped to hide their own sexual indiscretions might have been willing to turn a blind eye towards abortion.

As Sharafi notes, abortion was rarely prosecuted in most countries where it was illegal during the late nineteenth and early twentieth centuries. Abortion was too common and too difficult to prove in court for it to be otherwise. Looking at the South Asian case in comparison with the region I study highlights the common challenges faced by prosecutors trying to enforce laws criminalizing abortion, while also reinforcing the unique circumstances of colonial South Asia. In the 1920s, researchers in the Czechoslovak Ministry of Justice investigated who was prosecuted for abortion and under what circumstances. Estimates suggested that 80,000–100,000 illegal abortions took place annually in the country, but from 1925–1929, on average only 180 women a year were convicted of having an abortion.Footnote ² Prosecutions were more common in neighbouring Germany, which had about four times the population of Czechoslovakia. In 1925, 7,193 people were convicted in abortion cases there. While this number seems substantial, it is small compared to the one million illegal abortions experts have estimated took place in Germany every year during the 1920s and early 1930s.Footnote ³

In Czechoslovakia, far more cases came to the notice of police—on average about 800 a year in the late 1920s—than were eventually brought to trial. While the death of the woman was one way this could happen, this was the trigger in only a small minority of cases. According to the Ministry of Justice, abortion cases were most likely to come to court if they endangered a woman’s health; if they were connected to an investigation of a midwife suspected of having a large, for-profit operation; if they occurred at a late stage of a pregnancy so that the change was visible to the wider public; or through denunciations, whether for revenge or other personal motives.Footnote ⁴ This suggests that tips from the public were a crucial component in abortion prosecutions in Czechoslovakia. Similarly, in Weimar Germany, historian Cornelie Usborne shows how the police made use of denunciations in abortion cases, such as the case of Frau Spitzer, who came to the attention of the Berlin police in 1929 through an anonymous letter sent by someone angry with her over a botched love charm.Footnote ⁵ The willingness of East-Central European officials to act on tips from the public to put abortionists or their clients on trial, even when those tips were clearly motivated by anger or revenge, stands in stark contrast to the colonial administrators in South Asia who discounted the testimony of local people even when it might have led to a conviction. It makes their reluctance to use such tips even more striking, highlighting the extent to which racist beliefs shaped police practice.

While the sheer number of convictions for abortion in 1920s Czechoslovakia or Germany suggests that the law was enforced there with much greater rigour than in colonial South Asia, judges in both countries typically combined convictions with light sentences. In Czechoslovakia in 1930, 92 per cent of all women convicted of abortion received a sentence of less than three months and 91 per cent received a suspended sentence, even though the law allowed for a sentence of up to five years’ penal servitude. Sentences for midwives convicted of performing abortions—56 in total for that year—were somewhat higher, but none involved more than six months’ jail time, even in cases where the pregnant woman had suffered an injury or died.Footnote ⁶ In Germany before 1926, median sentences for a woman convicted of abortion were between three months and one year. A revision to the German law in 1926 changed that standard. In the early 1930s, German women convicted of abortion often received sentences of only a few weeks or even just a few days, which might also be suspended or commuted to a fine, particularly if they pleaded economic hardship or other mitigating circumstances.Footnote ⁷ The legal trend in both countries was clearly moving away from punishing women who sought abortions, even though abortion remained a crime.

Sharafi uses the case of T. v. T. to argue that abortion laws were routinely and openly disregarded in colonial South Asia. Mrs T. alleged her husband had caused her to abort three children by forcing her to take abortifacient pills, an act for which she was also legally culpable. Sharafi argues that Mrs T. would have not dared to make this allegation if abortion cases were aggressively prosecuted in Bombay. What struck me about this case, however, is how Mr. T. defended himself. In his testimony, Mr T. claimed he gave his wife the pills to help regulate her menstrual cycle, not to cause an abortion. As Sharafi writes, this kind of terminology hearkens back to an older way of thinking that defined the beginning of pregnancy as the moment a woman first felt her baby move. A procedure to restore the menses before quickening was not, in this way of thinking, an abortion. Starting in the eighteenth century, scientists began to redefine pregnancy as beginning at conception, not quickening. In the middle of the nineteenth century, abortion laws were changed to reflect this new scientific consensus. But many women continued to define themselves as pregnant after only quickening.

In her recent book on the New Woman in late nineteenth- and early twentieth-century Vienna, historian Katya Motyl argues that in the twentieth century, Viennese women came to understand their own bodies differently by internalizing what she refers to as the ‘medical gaze’. Her analysis revolves around two contrasting abortion cases, one from 1899 and another from 1927. In the first case, a young woman named Elisabeth Töpfel testified that after she had not menstruated for two months she went to a midwife to see what was the matter. The midwife examined her and, Töpfel said, restored her blocked menses. Töpfel claimed she had no idea she was pregnant and did not realize what the midwife had done was legally an abortion. Under Austrian law, a woman could be found guilty of abortion only if she had deliberately acted to terminate a pregnancy; the charges against Töpfel were eventually dropped. Almost three decades later, Julianne Schneeberger testified that she suspected she was pregnant as soon as she missed her period. After confirming this with a doctor, the unmarried Schneeberger contacted a midwife and arranged an abortion. Schneeberger, who openly admitted seeking an abortion, was convicted. While she acknowledges that Töpfel may have lied in order to be acquitted, Motyl argues these two cases illustrated a shift in how Viennese women viewed their own bodies. Schneeberger, a modern woman of the 1920s, was the product of a different cultural moment, one shaped by the development of professional medicine in Vienna, a fin de siècle Austrian campaign against ‘quack’ midwives, public health initiatives to educate citizens about hygiene and disease, and changing attitudes towards menstruation. Unlike Töpfel, Schneeberger interpreted the absence of menstruation as a possible pregnancy and actively asserted her right to control when she had a child.Footnote ⁸

Motyl is concerned with how Viennese women perceived their own bodies, not men’s perceptions of them. But her account, like Sharafi’s article, emphasizes the disconnect between male-authored legal and scientific definitions of pregnancy and women’s own experience. Austrian laws about abortion changed in 1852, but it took over five decades, Motyl argues, for many women to begin to interpret their bodies in ways that conformed with the law’s views of pregnancy. Yet in the case of T. v. T., it is Mr T., not Mrs T., who speaks of regulating menstruation instead of abortion. One possibility, which is the one Sharafi implies, is that both Mr and Mrs T. thought pregnancy began only at the moment of quickening, which would also mean that their views contradicted the IPC’s abortion statutes. Another, albeit less likely, possibility is that Mrs T. defined the absence of menstruation as a pregnancy, while Mr T. did not. Or it is possible that Mr T. only characterized his actions as ‘restoring’ Mrs T’s menstrual flow to provide some kind of legal cover for his actions. Whichever it was, the case of T. v. T. shows that older ways of thinking about menstruation and pregnancy were still in wide circulation more than six decades after the IPC came into effect. Mr T. was willing to use this defence because he thought there was a good chance it might be seen as reasonable, even if it was not actually in accordance with the law.

Sharafi’s work shows the IPC’s statutes on abortion did not reflect common practice, were difficult to enforce, and rarely prosecuted. So, why was there not more of a movement to change them? Sharafi notes that a 1933 bill to legalize abortion in some instances failed. Detractors claimed it was unnecessary, uncivilized, and/or communist. This 1933 bill in India bears a marked resemblance to proposals in East-Central Europe at precisely the same time. In 1932, Alfréd Meissner, the Czechoslovak Minister of Justice, brought forth a proposal to revise Czechoslovakia’s abortion laws, which had been inherited from the Habsburg monarchy and had not changed since 1852. His proposal would have legalized abortion for a combination of social and medical reasons: in cases of rape, if the mother was under the age of 16, to protect the health of the mother, or if having the child would create an undue financial hardship. Meissner’s rationale was that the Justice Ministry’s research had determined that the existing law was rarely enforced and primarily punished working-class women who turned to back-alley abortionists. Instead of the Hindu widow, Meissner’s proposal was centred around the image of a working-class mother struggling to support her existing children. Wealthier women who could afford to see a physician willing to help them terminate a pregnancy faced few repercussions; physicians were involved in only 5 per cent of abortion cases that went to court in Czechoslovakia.Footnote ⁹

Meissner’s proposal did not get enough support to come to a vote. Some of the reasons were similar to those in India: Meissner was a Social Democrat and legal abortion was strongly identified with the Left (this was also true in Germany, where there was a vociferous popular movement to legalize abortion around the same time).Footnote ¹⁰ Religious opposition played a role: Czechoslovakia was a predominantly Catholic country with a strong Catholic political party that rejected the legalization of abortion in any circumstance. A third factor, which does not seem to have played any role in India, was widespread fears of depopulation and national death. Czechoslovakia, independent only since 1918, was a small country surrounded by larger neighbours. Many Czechs and Slovaks thought women had a duty to bear children to ensure the nation’s survival. While such fears might have had a particular resonance among Europe’s smaller nations, the mass death of the First World War caused many Europeans to value what they saw as the needs of the population over the interests of individual women and men. Such sentiments were crucial in mobilizing support for draconian abortion laws.Footnote ¹¹

Those Czechoslovaks who opposed changing the existing laws around abortion recognized that the law did not prevent women from trying to terminate their pregnancies. We might surmise that they saw value in the law as a symbol, as Sharafi suggests was the case in India—in this case, as a symbol of women’s responsibility to bear children for the good of the nation. Yet, as the predominantly socialist and communist men and women who fought to legalize abortion in interwar Europe argued, even an under-enforced law could be responsible for a lot of suffering. Only when it was legal, they argued, would abortion be truly accessible, a point we unfortunately now acutely understand in the United States today.Footnote ¹²

Comment on Mitra Sharafi, ‘Abortion in South Asia, 1860–1947: A medico-legal history’, Modern Asian Studies, vol. 55, no. 2, 2021, pp. 371–428

Matthew H. Sommer, Stanford University

In her landmark article on the legal treatment of abortion in colonial South Asia, Mitra Sharafi interrogates the ‘gap’ between the absolute prohibition in the 1860 Indian Penal Code (except to save a woman’s life) and the reality that abortion was rarely prosecuted unless it had resulted in a woman’s death. In such cases, prosecution focused on anyone who may have abetted the fatal abortion by supplying its means. Professor Sharafi’s focus is on British colonial law rather than indigenous norms or traditions, but she also explores the social circumstances in which abortion occurred.

It is a pleasure to engage with Professor Sharafi’s article in this Symposium. I come to her article as a social and legal historian of Qing dynasty China (1644–1912), whose research focuses on gender, sexuality, and family. I claim no expertise on South Asia. In reading Professor Sharafi’s article, I am struck by many intriguing similarities between colonial South Asia and imperial China, but also by some key differences. For one thing, China was never colonized, despite being invaded and partially occupied by various imperialist powers, and although there was some presence of medical missionaries and Western-trained physicians after the Opium War, their impact was fairly superficial until the mid-twentieth century, especially outside the main cities. Hence the law in China was that of the Qing dynasty; and the methods used to attempt abortion during the Qing were indigenous and traditional.

My specific interest in the history of abortion (and fertility control more generally) dates to an article I published in 2010, which argued that traditional means of abortion in China were dangerous, unreliable, and often costly or otherwise hard to obtain. Under the circumstances, abortion was not attempted casually, but rather as a last resort in an emergency, and it often proved fatal. Occasionally, in a medical crisis, abortion might be attempted to save a woman’s life. But by far the most common scenario involved a woman pregnant by extramarital sex who was desperate to avoid exposure. The Qing legal code envisioned abortion as a dangerous manoeuvre to conceal criminal illicit sex and imposed penalties on anyone who had abetted a woman’s fatal attempt to terminate a pregnancy.Footnote ¹³

In colonial South Asia, who attempted abortion, and why? As in China, the big story appears to be adultery. Professor Sharafi’s analysis focuses on two categories of women who attempted abortion in order to avoid exposure of their extramarital sexual activity: Hindu widows and British women whose husbands were away on imperial service. In addition, sex workers occasionally resorted to abortion, if pregnancy threatened their livelihood; and at least some ordinary married women may have used abortion to regulate family size, i.e. ‘as a form of family planning’Footnote ¹⁴—but it is not clear how many people actually did this, a point to which we shall return. But the main theme of Professor Sharafi’s evidence is that abortion was attempted by women who sought to conceal adultery.

According to Professor Sharafi, Hindu widows were the ‘quintessential users of abortion in colonial India’.Footnote ¹⁵ Remarriage was severely stigmatized—and these women, who might be widowed in early adolescence, faced enormous pressure to preserve their chastity; among other things, it was necessary to secure their in-laws’ financial support, without which their prospects were grim. Therefore, widows who became pregnant resorted to abortion in a desperate attempt to maintain their social status as ‘chaste widows’.

When British couples were separated by the exigencies of the service, the wives became objects of pursuit by unattached British men—and many, it appears, welcomed such attention. That such affairs took place was an open secret and widely seen as something better hushed up than exposed to public scrutiny. When they became pregnant, these British wives, like the Hindu widows, also resorted to abortion in order to avoid the devastating consequences of exposure. Professor Sharafi explores these issues via the famous case of Edith Whittaker, a young British woman who died in 1896 after attempting abortion, and whose lover became the focus of prosecution.

As to why enforcement diverged so strongly from codified law, Professor Sharafi offers a nuanced explanation involving several factors. First and most obvious was the sheer difficulty of detecting that an abortion had occurred when the woman herself had consented and survived the procedure. Second, to prosecute Hindu widows who had induced abortion would have contradicted the spirit of a contemporaneous campaign to rescue those widows by empowering them to remarry. This campaign reflected a paternalistic sympathy that saw Hindu widows as the unfortunate victims of an unreasonable traditional moral system. To punish them for abortion, it was believed, would simply compound their victimization. Therefore, ‘a light touch on abortion when the women were still alive was the compromise needed to prioritize another social-reform campaign’.Footnote ¹⁶ Third, there was a racist perception among the colonial authorities that ‘the natives’ were dishonest, which meant that vulnerable women might be falsely accused or subjected to blackmail. This perception increased official reluctance to press charges against living women who had allegedly induced abortion.

As to the problem of long-separated British couples, Sharafi speculates that tacit sympathy for the parties plus a desire to avoid any scandal that cast the imperial establishment in a negative light may have militated against prosecution. But also, as she shows in the case of Whittaker, a growing consensus in the medical establishment about the priority of physician-patient confidentiality made doctors reluctant to cooperate with the prosecution of their patients.

In addition, Professor Sharafi notes the potential ‘symbolic value’ of having a total abortion ban on the books, despite its apparent ‘ineffectiveness’ in practice.Footnote ¹⁷ That value derived from a kind of virtue-signalling to specific audiences such as missionaries, as well as citizens and authorities back in the metropole. This kind of symbolic value seems to be a common feature of vice legislation, given that such laws are notoriously difficult to enforce. Examples from imperial China would include prohibitions on prostitution and official corruption, which were enforced capriciously at best.Footnote ¹⁸

How did people in colonial South Asia attempt to induce abortion? The most common methods were to take drugs orally or to insert an ‘abortion stick’ or other foreign object into the cervix. Abortifacient drugs might be smeared on the stick before insertion. The abortifacient drugs listed by Professor Sharafi include such ingredients as quinine, ergot, savin, plumbago rosea, arsenic, and ‘dried blister fly’ (i.e. blister beetles such as hycleus phelaratus, also well-known in ChinaFootnote ¹⁹), which are toxic and potentially fatal in large doses. They are also teratogenic, so if an abortion attempt failed, the child might well have birth defects. Of course, inserting any kind of foreign object into the cervix would have entailed grave risk of infection and also of perforating the uterus, among other complications. Edith Whittaker died after ingesting quinine, either orally or in the birth canal via an abortion stick.Footnote ²⁰

Professor Sharafi observes that ‘whether these substances were effective was by no means clear. “Effective” in this context meant that they would terminate the pregnancy without killing the woman.’Footnote ²¹ Given their toxicity, however, many traditional abortifacient drugs can cause severe illness and permanent damage to reproductive organs without necessarily killing their users. Therefore, it may be more realistic to deem a method of abortion ‘effective’ only if it can be used without serious risk of grave complications.

With regard to efficacy, it seems that a significant factor might have been change over time. By the early twentieth century, patent medicine abortifacients were being imported from Britain (although, since they contained ergot and other toxic substances, it is questionable whether they represented an improvement over traditional indigenous preparations). Also, the case of T. v. T. suggests that by 1927, some Western-trained physicians were providing surgical abortions that were presumably both safer and more reliable than traditional methods (because at least they would have reduced the risk of infection by means of antiseptic and sterilization). But it is unclear how far beyond the main cities such innovations would have reached.

At any rate, there is no consensus in Professor Sharafi’s sources about the efficacy of available methods of abortion, and indeed the question was debated in T. v. T. In that case, a Parsi woman sued her pharmacist husband for judicial separation which, unlike outright divorce, would have enabled her to secure his continued financial support. She accused him of cruel treatment, including forcing her to induce abortion by swallowing unidentified pills (which may have been patent medicines) on three separate occasions; her husband denied all accusations. Professor Sharafi uses T. v. T. to illustrate the lack of consistent enforcement of the statutory abortion ban (because the wife does not seem to have feared prosecution herself), as well as the unresolved question of efficacy: both sides in the trial deployed expert witnesses (all of them prominent Western-trained Parsi physicians in Bombay) whose conflicting testimony had the effect of cancelling each other out: the wife’s witnesses testified that abortifacients worked, whereas the husband’s denied it. In the end, the jury granted a separation without ruling on the wife’s specific claims about abortion.

The methods of abortion available in Qing dynasty China were quite similar to the ones Professor Sharafi documents being used in South Asia. In China, abortifacient drugs were the means most commonly employed, and a variety of herbal, mineral, and animal substances were believed to have such properties. They would usually be taken orally in the form of infusions but could also be applied as vaginal suppositories or abdominal plasters. These drugs were either highly toxic, completely ineffective, or both—and whatever abortifacient efficacy some of them may have had appears to have been a side effect of poisoning. Other methods included inserting foreign objects into the cervix, stabbing long needles into the abdomen, and self-injury by various other means. All of these methods were dangerous, and the most common scenario found in the relevant legal cases is that a woman died after attempting to induce abortion. As one eighteenth-century jurist explained, ‘the drugs used to induce abortion are all extraordinarily harsh in nature, so that even one out of ten women who suffer their effects may not survive’.Footnote ²² Similarly, the medical texts that record therapeutic abortions emphasize that such drugs are so dangerous that they should be used only as a last resort to save a woman’s life.

The Qing prosecutorial focus on the circumstances of women’s deaths is another strong point of similarity with Professor Sharafi’s evidence. Before my 2010 article appeared, there had been some confusion about the legal status of abortion during the Qing. A couple of scholars had attempted to show that under Qing law, women had a ‘right’ to abortion. This argument was based on a fundamental misunderstanding of Qing law, which had no doctrine of ‘rights’ nor even any word for that concept, let alone a ‘right to choose’ abortion. It also begged the question: against whom Chinese women might have asserted that purported right? Their husbands? The imperial state? Both scenarios are unthinkable; moreover, any woman pregnant from extramarital sex was herself a criminal liable for punishment under the law.

The most common protagonists in Qing legal cases who attempted abortion were widows and wives whose husbands were away; we also encounter young women as yet unmarried, along with the occasional Buddhist nun. In other words, we find much the same cast of characters featured in Professor Sharafi’s South Asian cases. In fact, the 1892 description of Hindu widows she quotes in her articleFootnote ²³ applies so well to Chinese widows (aside from the word ‘caste’) that it might well have been written about them.Footnote ²⁴

Did Qing law prohibit abortion per se? The relevant laws all explicitly address the provision of lethal abortifacients to an adulteress. (The one exception mandates penalties for any physical assault on a pregnant woman that causes her to miscarry.) My sense is that Qing jurists understood abortion to be so dangerous, and associated it so strongly with adultery, that they did not envision any other scenario in which it would be likely to be attempted.Footnote ²⁵ At any rate, I have no evidence that anyone was prosecuted for abortion outside the scenario of adultery.

Given the similarities between Professor Sharafi’s evidence and my own, I find myself wondering how many women in colonial South Asia could have used abortion for family planning, especially in the vast rural interior. A related question is how many women who attempted abortion actually survived the experience. It may be impossible to answer either question with certainty, and Professor Sharafi adopts an agnostic posture, given the limits of her evidence and the very different focus of her article. No doubt, as in China, at least some of the traditional techniques worked as intended at least some of the time, in that some women managed to terminate pregnancies without dying. But given how dangerous the available techniques were, it seems unlikely that people would have resorted to them in a casual or routine way—i.e. in the way people today might use modern forms of birth control. In the case of China, I have found no credible evidence of anyone ever doing so.Footnote ²⁶

At the same time, however, we should bear in mind the high rate of maternal mortality in these societies, which means that pregnancy and childbirth were also fraught with risk. Therefore, we can assume that a woman considering whether to limit her family’s size by means of abortion would have tried to weigh its risks against the well-known hazards of carrying a pregnancy to term, plus the burden of an extra mouth to feed in conditions of poverty. It would be illuminating to determine how the risks of traditional abortion methods compared to those of completing a pregnancy, but that may be impossible. At any rate, these would not have been easy or risk-free decisions.

Professor Sharafi’s main question is why prosecution focused almost exclusively on cases in which women died, given that the Indian Penal Code had banned abortion absolutely (except to save a woman’s life)—otherwise, enforcement was ‘lax’. Her answers are certainly persuasive, but the unstated premise of the question seems to be that a significant number of women did succeed in safely terminating pregnancies, and that the colonial authorities made a conscious decision not to prosecute them. But we should consider an additional possibility: that prosecution focused on death precisely because death was such a frequent outcome.

This issue is important for the light it may shed on the life chances of women in times past. But also, at least some scholars have portrayed traditional folk methods of contraception and abortion in various parts of the world in very positive and optimistic terms.Footnote ²⁷ Some of that scholarship seems informed by wishful thinking, a wish to believe that before the rise of modern, male-dominated professions, women could draw on a body of orally transmitted herbal lore to control their own fertility—and might even have been able to liberate their sex lives from reproduction in a definitively modern way.Footnote ²⁸ I confess myself profoundly sceptical about such claims—I have seen no credible evidence to support them—but also, as a feminist (as well as someone who has benefited enormously from modern biomedicine), I find myself wondering about the purpose and utility of portraying the past in such a positive light. Did women anywhere in the world before the advent of modern biomedicine have access to means of fertility control that were even remotely comparable in safety and reliability to those now available? If so, then why don’t we continue to use those methods today? Why was the Pill so revolutionary? In the United States, why did we need Roe v. Wade?

These questions are not ‘ancient history’ or of merely academic interest. For one thing, at least some Chinese women have continued to use dangerous traditional abortifacients (along with self-injury, etc.) even in the twenty-first century, despite the fact that safe and legal contraception and abortion are widely available in China. This usually happens in poor rural areas, and the typical scenario is a familiar one: women who are desperate to conceal extramarital sex do not dare risk the publicity that a clinical abortion might entail, and instead resort to concoctions of poisonous herbs and insects at home. Many are young and unmarried. The rate of unsafe abortion is considered negligible in China, and yet such cases appear in the public record with some regularity, when the women end up dead or in emergency care. Have similar cases occurred in post-colonial South Asia?

Given the Chinese government’s recent embrace of regressive, pro-natalist policies (in part a reaction to an unexpected decline in population), it would not surprise me if access to contraception and abortion is curtailed and increasingly difficult in the future. As a result, the incidence of unsafe abortion may well rise. But in the United States, too, the Supreme Court’s recent ruling in Dobbs v. Jackson Women’s Health Organization means that abortion is once again a matter of life and death.Footnote ²⁹ When abortion is banned (or otherwise made unavailable), women die—and one of the reasons they die is that prohibition drives abortion underground, where inevitably some desperate women will resort to dangerous and unreliable measures.Footnote ³⁰

Comment on Mitra Sharafi, ‘Abortion in South Asia, 1860–1947: A medico-legal history’, Modern Asian Studies, vol. 55, no. 2, 2021, pp. 371–428

Philippa Levine, Emerita, University of Texas

As I write, the Indian government is in the process of overhauling the Victorian penal code it inherited from the British, a code which lies at the centre of Sharafi’s article. Despite governmental statements about the importance of women and the need for new modes of thinking that reject colonial attitudes, this revised code specifically states that sexual acts within marriage cannot constitute rape, a principle wholly aligned not with present-day mores but with those of the architects of the 1860 code.Footnote ³¹ In Victorian Britain, there was no such thing as marital rape: men enjoyed unfettered access to the bodies of their legally married wives. It was 1991 before the concept of marital rape found its way into English and Welsh law, though the issue had been raised in the late 1970s and again in the 1980s, when Labour politician John Tilley posed the poignant question, ‘Why, in 1983, should a man have a legal right to rape his wife?’ in the House of Commons.Footnote ³² More than 30 years later, critics in India are asking that same question, as the reproductive and sexual freedoms of women continue to come under threat across the globe. The historical record suggests that in some areas little has changed. While Indian women fight to have the concept of marital rape recognized, elsewhere abortion rights are being rolled back, perhaps most notably right now in the United States.

Women living under British imperial rule faced endless restrictions on their movement, their behaviours, their liaisons, their ability to earn a living, and so much more. These constraints were imposed in many arenas, and one of the most potent (albeit not always effective) was law. The Indian Penal Code, implemented in 1862, sought to streamline, codify, and extend criminal law, while in Britain, the Judicature Act of 1873 was an attempt to rationalize legal procedure and practice, creating a new court structure with the Court of Appeal and the High Court of Justice at its pinnacle. But while the intent of these changes was to standardize, Sharafi’s work suggests that in practice laws on abortion were applied scrappily, piecemeal, and selectively—not just in India (her focus) but across Britain’s empire. The same may be said of many other laws aimed at women’s sexuality; abortion was by no means an outlier. Indeed, it is more helpful to understand abortion as part of a spectrum of reproductive and sexual issues affecting and shaping women’s lives, rather than as a standalone matter. As Durba Mitra has noted, the Indian Penal Code addressed a range of female sexual behaviours, not just abortion.Footnote ³³ Imperial lawmakers tackled everything from child marriage and (disastrously incompetently) age of sexual consent to widow remarriage and the sale of sex alongside their attention to abortion.

Reproductive freedom, or more realistically, its absence, lies at the heart of any analysis of the lives of women. The potential for pregnancy—welcomed or feared—has been a constant in the lives of adult women. Historically, the options for terminating or preventing a pregnancy have been limited, as well as frequently controlled by men, through either religious or secular judicial authority. Before the advent of efficient and, perhaps more significantly, accessible contraception, the most common practice deployed to intervene in a pregnancy was, inevitably, abortion. Nonetheless, abortion cannot be separated out from the other constraints which have so often limited women’s sexual and reproductive freedoms. Fundamental to any understanding of women’s sexual and reproductive rights, abortion needs to be understood in the broader context of gendered experience and rights. Indeed, the Parsi case (T. v. T., 1927) discussed in Sharafi’s article throws as much, if not more, light on marital abuse as it does on abortion. Sharafi’s other case—the Templeton case—meanwhile, is surely as much about scandal in the upper echelons of colonial society and about professional ethics as it is about abortion. Does either tell us that much about the ostensible subject of article—the execution of the abortion law enshrined in the Indian Penal Code? Both cases are rich and fascinating, without doubt, and throw light on Indian and British lives in colonial India, on the wielding of (male) medical expertise, on the precarity women invariably faced. Whether they in any sense typify how abortion was handled, whether at the legal level or in the lives of those affected, is more questionable. As the author notes, this was an under-enforced law, pursued largely as a result of a women dying from an abortion; indeed, one of the two cases under discussion involved a woman very much alive, having by her own testimony survived three abortions allegedly forced on her by her pharmacist husband.

Sharafi argues that specific South Asian contexts explain India’s under-enforcement of the law, even as she rightly acknowledges that many other imperial locales shared its low level of prosecution. She outlines five arenas: ‘practical impediments to detection, the Hindu widow-remarriage movement, the colonial state’s concern with false charges, imperial separations among British couples, and physicians’ reluctance to cooperate with the criminal justice system’.Footnote ³⁴ To my mind, only one of these can be seen as truly local: the widow remarriage issue. The Hindu Widows’ Remarriage Act of 1856 legalized second marriages for widows and offered them protections in some forms of inheritance. The legislation was addressed almost exclusively to a situation in which upper-caste women might find themselves; the vast majority of Hindus did not cleave to the prohibition on remarriage but the colonial government, as they had in the equally controversial earlier legislation on sati, chose to universalize Brahman practice. As would be the case with India’s age of consent law in 1891, the act provoked outrage and protest, with many arguing that the Government of India was trampling on the sacred rights and beliefs of Hinduism. Though some four decades apart, these laws were nonetheless related. The 1856 Act had been, to some extent, an attempt to address the plight of girls left widowed at a very young age, while the 1891 law raised the age of female sexual consent from 10 to 12 ostensibly to protect young girls from premature sexual liaisons within as well as beyond marriage. But while these practices may have been specific to South Asia, the laws were also shaped by wider concerns left largely unaddressed in Sharafi’s article. Among colonial officials, in scientific and anthropological texts, and in popular belief, the tropical or hot climates of many of Britain’s imperial possessions engendered a hyper-sexuality that spilled into law-making across the empire. This view manifested in arguments that prostitution was rife and unremarkable in many colonial sites, that girls matured earlier, and that men were unable to tame their lust. The judicial corollary was laws that attempted to contain ‘native’ sexuality in myriad ways, from the management of prostitution to prohibitions on inter-racial liaisons. And this highly moralizing discourse was surely also related to a phenomenon Sharafi does discuss at length—the fear of false accusations based on a profound suspicion of the probity of the ‘native’. This was certainly a widespread and well-developed prejudice among the British in India but it was hardly unique to this particular colonial context. The ‘civilizing mission’ was premised on the need to counter the amorality and/or immorality of colonized peoples in need of uplift and education. While this may have been read differently in India than in other colonial sites (not least because of the belief that a former civilization had degraded over time), the principle was common across colonial possessions in Asia and Africa as well as the Caribbean and Australasia. Where colonial power was exerted over peoples of colour, the basic assumption was that these were peoples who could not be wholly trusted, particularly with the privileges of power.

Sharafi offers two further local contexts to explain the situation in British India: separation among British couples (in short, female adultery when couples were not living together) and the reluctance of doctors to cooperate with the criminal justice system. It is in these contexts, in particular, that she analyses the messy and prolonged Templeton case of 1896–1902. The narrative of this case reads like a racy novel complete with Masonic references and broken friendships, counter-suings, and mysterious secrets. The woman at the centre of the case, Edith Whittaker, died as a result of her abortion, but in so many ways she rapidly became invisible as the arguments concentrated instead on the duties and ethics of the medical men and on the ruination of the unfortunate Mrs Templeton (with whose husband Whittaker had had the affair leading to her pregnancy).

But the issue of whether doctors should—or should be required—to disregard patient confidentiality was, again, not solely an Indian question. In 1915, the British Medical Association passed a resolution upholding the rights of its members to maintain patient confidentiality in the face of legal demands, and though the position was not universally embraced within the profession, most hewed to this position. British medical men in India unsurprisingly adopted the same stance. The two doctors in the Templeton case, Patrick Hehir and Edward Lawrie, behaved much as they would have done in a case in the British courts. The Templeton case, in many ways, could have been heard in courts throughout the British empire with similar arguments and possibly similar outcomes.

Ironically, in the age of medically safe abortions, we may see an uptick in prosecution as abortion rights are narrowed and withdrawn. What Sharafi’s work makes clear, as does the work of other scholars in the field, is that prosecution in eras when abortion was illegal was spotty, generally the result of the tragedy of the woman dying from a botched procedure, and the abortionist the likeliest victim of the reach of the law. The extension of limitations on contemporary reproductive rights will surely see not only a return to the dangerous practices of backstreet abortions but a much easier path to broader prosecution. Better techniques and higher chances of survival even in illicit operations will render women seeking abortions far more vulnerable to prosecution alongside the practitioners who bore the brunt of earlier laws. The chilling effect of this new reality speaks potentially to a change from the symbolic work Sharifi understands the law to be doing to a far more extensive assault on women’s reproductive freedoms and rights, consonant with and building on the failure of the new Indian code to recognize the existence of marital rape.Footnote ³⁵

Author’s response

Mitra Sharafi, University of Wisconsin Law School

This Symposium creates a rare opportunity for a conversation between historians of abortion in four different settings: Qing China, British India, the British empire, and East-Central Europe in the early twentieth century. I am grateful to Melissa Feinberg, Matthew H. Sommer, and Philippa Levine for their thoughtful engagement with my work, and to Modern Asian Studies editor Sumit Guha for proposing this exchange. I should say at the outset that Professor Sommer’s article on abortion in Qing China provided inspiration for my MAS article.Footnote ³⁶ After I stumbled on T. v. T.—the 1927 case of a Parsi woman accusing her pharmacist husband of forcing her to abort three pregnancies—I wondered if I could write for British India something akin to what Professor Sommer had produced for Qing China. By this, I mean that I wanted to create something quite broad on abortion in colonial-era India, rather than a piece focusing on one case, which the classic article on abortion in India—Ranajit Guha’s ‘Chandra’s Death’—had already done.Footnote ³⁷ In this brief response, I will reflect on some of the similarities and differences noted across these four settings, and will consider how a research agenda for future scholars may emerge from this discussion.

Professors Feinberg, Sommer, and Levine have revealed the extent of the similarities across these four settings, which is in some ways greater than I had realized. From Bombay to Vienna (Feinberg), people held on to the idea of quickening decades after legislation eliminated it. In British India and Qing China (Sommer), women and girls used many of the same abortion techniques and pharmacopeia. Anti-abortion law was commonly under-enforced in both societies, and may have been largely symbolic. And in the larger British empire (Levine), as in India, abortion was often difficult to detect: physicians guarded doctor-patient confidentiality (not reporting illicit abortions to the police), and colonizers were deeply invested in the idea of native mendacity with regard to people of colour. Across the empire, many British couples spent long periods apart, which could lead to affairs and abortions best kept quiet to protect imperial prestige.

What are the key differences across these four settings? These strike me as the most interesting aspect of this discussion. Let me highlight two. The first relates to social movements. My article explores the intersection between two social reform movements—the anti-abortion movement manifested through the anti-abortion provisions of the Indian Penal Code (IPC) and the Hindu widow remarriage movement, which tried to incentivize upper-caste Hindu widows to remarry, despite social stigma. I argue that the IPC’s anti-abortion provisions were under-enforced because prosecuting Hindu widows (the women most closely associated with abortion) would undermine the countervailing movement—deemed more important—that portrayed upper-caste Hindu widows as victims of a patriarchal double standard.Footnote ³⁸ As Professor Levine observes, this theme is the most distinctively South Asian explanatory factor behind under-enforcement that I offer. In Qing China (Sommer), abortion was also associated with widows of child-bearing age. Remarriage was possible but stigmatized for most widows. Poor widows usually had to remarry for economic reasons, but young widows whose husbands left them sufficient land not to have to remarry had to remain chaste to keep the land—and custody of their children. These women comprised the widows in abortion cases.Footnote ³⁹ The association of widows and abortion was thus similar in imperial China and British India. What was different in India was the existence of a social reform movement. This movement was well organized and sustained enough to produce legislation like the (Hindu) Widows’ Remarriage Act of 1856 (explored by Levine) and to overshadow anti-abortion efforts, which presumably emanated from evangelical and missionary centres in the imperial metropole. Other distinctive social movements emerge from this Symposium, too. In interwar Czechoslovakia, Melissa Feinberg shows that pro-natalists took an anti-abortion stance, arguing that this new, small country needed women to bear children to ensure the nation’s survival. This movement was presumably not unique to Czechoslovakia, but it is unlike anything I encountered in my research on colonial India. In the post-colonial period, India was in fact the inverse of interwar Czechoslovakia. Mytheli Sreenivas has shown that advocates of population control were a key force behind the passage of the Medical Termination of Pregnancy Act of 1971, which increased access to medical abortion.Footnote ⁴⁰ In short, the levers of abortion law were pulled in opposite directions by pro-natalist nationalists in Czechoslovakian history (anti-abortion) and by Hindu widow remarriage and population-control advocates in India (pro-abortion). The role of social movements made the widow-abortion relationship in colonial India different from its counterpart in Qing China.

A second difference has to do with the relationship between criminal penalties and enforcement of anti-abortion law. Melissa Feinberg observes that the criminal legal system’s approach was markedly different in East-Central Europe than in colonial India and the British empire. The model in the Anglosphere, as Philippa Levine confirms, was to impose harsher penalties on the books (for example, three years’ rigorous imprisonment for abortion under IPC s.312), but with relatively low enforcement rates. In interwar Germany and Czechoslovakia, though, the rate of prosecuting abortion offences seemed to be quite high but the sentences were comparatively light, often a few weeks’ or days’ imprisonment (Germany in the early 1930s) or a suspended sentence of under three months (Czechoslovakia in 1930). What should we make of this difference? Was the priority in the Anglosphere simply to produce symbolic legislation from the start? In East-Central Europe, these relatively low sentences were judge-driven: judges were authorized to give harsher sentences than they did. Feinberg notes another fascinating difference: unlike in India, where the state was reluctant to pursue accusations of abortion made among South Asians because it suspected they were false, the governments of Czechoslovakia and Weimar Germany acted regularly on tip-offs from the public (including those motivated by petty grievances or a desire for revenge). This difference may have been race-based: as Philippa Levine notes, Britons across the empire regarded people of colour as mendacious. One product of this stereotypical belief was lower enforcement of anti-abortion law in a colony like India. These two models—lower penalty–higher enforcement (East-Central Europe) or lower enforcement–higher penalty (British India and the empire)—shaped the life chances of women and girls in profound ways.

This discussion highlights a set of themes and questions for future scholars. First is the continuing need to document historical patterns of abortion access and methods. As Matthew Sommer notes, we have more to learn about rural patterns, extending our knowledge beyond the urban patterns that are often easier to find in the archives. My two key cases came from urban centres—Bombay and Hyderabad—and neither allowed me to make claims about how abortion practices may have differed in the countryside. This also addresses Philippa Levine’s question of how representative my big cases may be—perhaps not very for the mofussil or rural areas. Patterns among ethno-religious or racial communities also deserve continuing attention. In my article, I focus on abortion practices among Hindu, Parsi, and British women and girls. But in a diverse society like colonial India, women from other populations—by religion, caste, and indigenous group—may have followed other practices, as those in regions with distinct materia medica may have done. Similarly, historians of Qing China remind us how different types of marital or sexual relationships may have affected abortion patterns. For South Asian history, this could range from polygyny (as in most Hindu or Muslim polygamy) and polyandry (as in some Himalayan or Nayar communities) to temporary marriage (among Shia Muslims), concubinage, and other prostitution-adjacent configurations.

Secondly, scholars should not forget the question of efficacy, an old one among historians of medicine, to which Matthew Sommer returns.Footnote ⁴¹ For Qing China, Sommer suggests that claims about the effectiveness of women’s traditional knowledge and non-allopathic medicine may be overstated, and their risks understated. This invites the broader question—whether women over the past few centuries had the ability to control their fertility in ways similar to what is possible today through allopathic medicine. These questions are methodologically challenging. My sources from colonial India were rather inconclusive on efficacy, for instance. In the battle of the experts in the 1927 case of T. v. T., medical experts contradicted each other precisely on the question of efficacy (as Sommer notes). That said, there is the related question—which assumes some degree of efficacy—of whether married women used abortion for routine family planning purposes. Professor Sommer has his doubts for Qing China. For South Asia, the existence of the colloquial expression ‘wife’s friends’ to describe illicit oral abortifacients in 1920s Bombay suggests to me their use for family planning.Footnote ⁴² Scholars should remain attentive to the limits of their sources, but they should also continue to wrestle with efficacy, a whack-a-mole theme that is hard to avoid in the history of abortion.

Change over time is a third important dimension for research, also emphasized by Sommer. Histories of abortion in the United States, like Leslie Reagan’s classic book When Abortion was a Crime, pay close attention to periodization, focusing on shifts in enforcement.Footnote ⁴³ My sources did not allow me to say much about changes in enforcement between the Hyderabad case (1896–1902) and Bombay case (1927), given the different methods of abortion used, the fact that one was a fatal case (Hyderabad), and the princely state aspects of that same case. My article does focus on one major chronological turning point, though: the introduction of stricter anti-abortion measures with the IPC of 1860. As this Symposium reveals, this shift occurred beyond South Asia. Professors Levine and Feinberg (along with Leslie Reagan) observe that a wave of stricter anti-abortion law rippled across the British empire, the United States, and East-Central Europe during the mid-nineteenth century.Footnote ⁴⁴ Historians of abortion should look more closely at this shift, its geographic extent, and potential causes. Did anti-abortion law become stricter only in the Western world (and British empire) in the mid-nineteenth century, or did it also occur in places like China or Japan, for instance? And what were the key drivers of this change—developments in embryology, organized efforts by religious groups, or other factors?

Fourth and finally, historians of abortion should remain cognizant of the special methodological challenges they face. Historians of any secretive, illicit behaviour—from smuggling to abortion to the planting of false evidence—know that their actors avoided leaving a paper trail.Footnote ⁴⁵ One reason to focus on the history of the professions, as I do in my article, is that primary sources on abortion produced by medical and legal professionals in India (like state sources) were more visible than other kinds of sources. That said, many of my richest legal sources were not found in the places I expected. To start, I could find only five published decisions under abortion-related provisions of the IPC (ss.312-15 or 328) between 1862 and 1947.Footnote ⁴⁶ This surprised me, but I soon realized that looking for an oblique entry point could be more productive than coming at this topic from the front. Ultimately, I found richer defamation cases relating to abortion than actual IPC ss.312-15 (or s.328) cases—and T. v. T. was a civil (matrimonial) case, not a criminal one. Studying something secret requires looking in non-obvious places. Oral history methods have produced remarkable results this way—from Barbara Baird’s study of illicit abortions in South Australia before legalization in 1970 to Kate Fisher’s interviews with elderly Welsh working-class women born in the early twentieth century.Footnote ⁴⁷ Historians of abortion should continue to think nimbly and creatively about where to find primary sources, gleaning ideas from scholars working on abortion in other times and places.

Abortion access and legality remain matters of life and death for women and girls around the world, and the past—in its many comparative forms—echoes loudly in our present. Despite (or because of) the cherry-picked version of legal history that appears in judgments like the US Supreme Court’s majority opinion in Dobbs, it is imperative for historians to continue sharing our scholarly findings on abortion publicly. It is even better when we can pool our knowledge, increasing the odds that perhaps one day a court will listen.Footnote ⁴⁸