Opinion | The ‘Open Secret’ on Getting a Safe Abortion Before Roe v. Wade - The New York Times

The ‘Open Secret’ on Getting a Safe Abortion Before Roe v. Wade
June 4, 2022

By Sally L. Satel
Dr. Satel is a visiting professor of psychiatry at Columbia and a senior fellow at the American Enterprise Institute.

If the Supreme Court overturns Roe v. Wade, will psychiatrists resume their pre-Roe role as arbiters of abortion access? The law once compelled psychiatrists and pregnant women to perform dishonest rituals to get abortions. Will psychiatrists once again need to be complicit post-Roe?

Before Roe v. Wade, a number of states allowed abortions if doctors could certify that the mother’s health, not solely her life, was at serious risk. A great number of those certifications were granted by psychiatrists, some of them by the professors who taught me as a resident in the mid-1980s in Connecticut.

Through the 1940s and 1950s, medicine advanced to the point where health problems like heart disease and tuberculosis were generally no longer considered to be indications for therapeutic abortion. As a result, psychiatric justification became the primary rationale for therapeutic abortion before Roe.

Certainly, psychiatrists had — and still have — an important clinical role in the care of pregnant women. We care for those who are currently psychotic or deeply depressed and those whose past pregnancies triggered postpartum psychosis or depression. Fortunately, with the help of mental health professionals, mentally ill women have long been able to progress successfully through nine months and deliver healthy babies.
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Before Roe, psychiatrists were asked to consult on women with severe anxiety and depression who were requesting abortions. It was an “‘open secret,’” Dr. Richard A. Schwartz of the Cleveland Clinic observed in 1972, the year before Roe was decided, “that a woman can obtain a safe abortion in a licensed hospital if she can find a psychiatrist who will say she might commit suicide.”

To accommodate such women, psychiatrists used a combination of empathy and civil disobedience to declare them at risk unless they were allowed to terminate their pregnancies. Requests to psychiatrists to evaluate women for abortion increased in the decades before Roe. According to “Modern Clinical Psychiatry,” a popular medical textbook published in 1968, “the number of abortions performed on the recommendation of psychiatrists increased rapidly in the past two decades.” At a convention of the American Medical Association, researchers presented data on two Buffalo hospitals where the proportion of therapeutic abortions approved for mental health reasons rose from 13 percent in 1943 to 87.5 percent in 1963.

In 1967, California became one of three states to authorize abortion when, among other indications, a pregnancy seriously endangered a woman’s physical or mental health. (Colorado was first, North Carolina second.) Before the passage of the act, the California Penal Code made it a felony to perform an abortion on a woman for any reason unless necessary to preserve her life.

Leon Marder, at the time an associate professor of psychiatry at the University of Southern California, described the workings of a committee that weighed abortion requests at the Los Angeles County-University of Southern California Medical Center. At first, a woman’s request for an abortion would be seriously considered only on psychiatric grounds if she was “overtly psychotic or highly suicidal.”

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This high bar was consistent with the state’s Therapeutic Abortion Act of 1967, which authorized abortions when there was a “substantial risk” that pregnancy would “gravely impair” mental health.
But hospital officials soon realized that few cases met this narrow criterion, and the committee had to decline many applications. As some of those women resorted to self-induced abortion or underground surgeries, Dr. Marder said, the committee broadened eligibility to women who displayed a “disorder of thinking, feeling or behavior producing a breakdown in living so that the individual cannot deal with reality or cannot function.”

That created its own tension as psychiatrists struggled to discern whether a woman’s stated intent to kill herself was truthful. With many doctors reflexively discounting suicide threats, a desperate woman could become insistent during the psychiatric assessment. “The patient may consciously exaggerate all of her symptoms and frequently can be considered manipulative and malingering,” Dr. Marder noted. Any hope of conducting a careful assessment, one San Francisco psychiatrist commented, was “compromised from the outset.”

As more states liberalized their abortion statutes between 1967 and 1973 — 13 states extended exceptions to circumstances including the health of the woman and four states repealed abortion bans — psychiatrists increasingly faced painful dilemmas, among them the vast discrepancy in access to abortion. Middle- and upper-class women in psychoanalysis, those who knew the “right words” with which to request an abortion (which, according to a 1967 article about abortion in New York City was “if I have this baby I’ll kill myself”) and those with means to pay a psychiatrist to evaluate them in the first place had a clear advantage in obtaining approval for abortions.

Compounding the problem, psychiatrists did not have a strong database on which to draw to determine whether a pregnancy was likely to constitute a threat to the life and mental health of a given woman. (Even now, that remains true.)

The approval process placed psychiatrists in an ethically tenuous position. Though a 1969 survey of psychiatrists found that 79.5 percent (71.7 percent without qualification, and 7.8 percent with qualification) believed that abortion should “be available to any woman capable of giving legal consent,” some were uneasy about rubber-stamping permission for women who were not seriously mentally ill or truly suicidal.

Others committed small acts of rebellion, stretching boundaries. “I recommended abortion for all,” recalled Dr. H. Steven Moffic in a recent Psychiatric Times article. “My mental health analysis at the time was not only about the mental health of the would-be mothers, but their upcoming children if abortion was not done.”

The hypocrisy grated on some. One psychiatrist rued in The New England Journal of Medicine in 1969 that humanitarian rationales for abortion could “masquerade under psychiatric labels.” Yet others lamented the arbitrariness of approval, noting that the psychiatrist’s “anxieties concerning humanitarian, social, economic, and religious considerations rather than any definite psychiatric criteria play a definite role in his objections or consent.”

However ambivalent or decisive they felt, psychiatrists engaged in a formalized, sometimes cynical, ritual to provide women with safe care. Dr. Alan F. Guttmacher, a former president of Planned Parenthood, wrote that more than 85 percent of the abortions performed at Mt. Sinai Hospital in the mid-fifties (when he chaired the OB-GYN department) “at least bent the law, if they did not fracture it.”

In the year before the Roe decision, maternal mental health was the most common indication for a hospital abortion, accounting for more than 85 percent of all cases in the 12 states that reported the stated reason for abortion, according to the government’s abortion surveillance annual summary.

The Roe decision rescued psychiatry from these quandaries. It spared a woman the demeaning ordeal of lying about her mental health and the prospect of being branded “manipulative and malingering” should her deception fail or if she was interviewed by an unsympathetic or a conflicted doctor.

Today, as the nation appears to be moving toward a post-Roe world, we do not fully know what kind of patchwork of restrictions will be applied in different states. The governor of Oklahoma, Kevin Stitt, has already signed a bill whose wording seems emphatically designed to remove psychiatry from the picture. The state’s new ban on abortion excepts a life-threatening “medical emergency” arising from a “physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from pregnancy itself.”

Presumably, some states will have a mental health exception to their abortion statutes, but there is only a spotty network of psychiatrists to meet potential need. According to a 2015 estimate based on data from the Bureau of Labor Statistics, there are 76 percent more psychologists or psychiatrists per capita in blue states than in red states. Roughly 60 percent of counties in the United States — including 80 percent of rural counties — do not have a single psychiatrist practicing there, based on a 2017 report. Most of us are in the Northeast and some counties along the West Coast.

Telepsychiatry and licensing reciprocity laws could allow out-of-state psychiatrists to conduct assessments and thus compensate for their skewed national distribution. This, too, will depend on the restrictiveness of the state in which the woman lives, especially if criminal liability is extended to those advising women or coordinating with the physician who would terminate the pregnancy.

I live in Washington, D.C., which will surely take a liberal approach. But if called upon to evaluate a woman seeking an abortion, I would apply an expansive definition of mental health. Where state law limited its definition of “mental health,” I would follow the law.
Otherwise, politicians would quickly learn our “open secrets,” regard our evaluations as a charade, and move to freeze us out of the process altogether, as Oklahoma has done, keeping us from helping the most severely mentally ill women. After then-governor Ronald Reagan signed California’s 1967 abortion act, his daughter said, he began to regret it when he learned that “psychiatrists were diagnosing unwed mothers-to-be with suicidal tendencies after five-minute assessments so that they could get abortions.”

Thirty years ago, shortly after the Supreme Court reaffirmed Roe’s central holding by a single vote in Planned Parenthood v. Casey, the psychiatrist Paul S. Appelbaum speculated that returning to restrictive abortion laws “will confront psychiatrists with dilemmas from which there is no clear escape.”

Recently I asked Dr. Appelbaum to update his prediction. “Given understandable sympathy for a woman who does not want, and may not be able to care for, a baby, and lacks other options, psychiatrists will be under intense pressure to make such judgments,” he told me.

Mental health exceptions will be one of the only ways of gaining access to abortion in some states. This means that my profession will surely assume the troubled role of gatekeeper once more, feeling pressured by a woman’s circumstances, and often by their own conscience, to label her as disturbed when, in reality, she is sane.