Forty-four years ago, a college student lying semi-conscious in a hospital bed confessed in her police statement: “After being told (by a physician at the clinic) that my pregnancy was too advanced for a safe abortion, I was worried, upset, and crying. The next morning, I attempted to perform the abortion myself. I put a knitting needle in my uterus…I had no way out. I felt like dying.”
After her fetus was delivered (along with the six-inch knitting needle) at the hospital, Marla Pitchford was arrested. In June 1978, she was indicted by the grand jury for manslaughter and for performing an illegal abortion. According to Kentucky law (KRS 311.750) created in 1974 and still in effect the performance by other than a licensed physician is prohibited for an abortion. Violations of this statute is a felony with a penalty of 10 to 20 years in prison. Marla had been 20 to 24 weeks pregnant so still within the period to obtain a legal abortion.
Marla Pitchford was 22 years old, quiet-spoken, and with strikingly long red hair. 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.
Her lawyer, my sister, Flora Templeton Stuart, had recently begun her practice as the first female attorney in Bowling Green, Kentucky. That summer of 1978, I had come to Bowling Green from teaching in Ohio to stay with family. My plan was to learn more about the criminal justice system for a course I was assigned to teach in the fall.
Now a personal injury lawyer in private practice, Flora Stuart recalls this case with considerable passion. On the wall of her office hang two neatly framed photos of herself and Marla. Both are beaming with joy. Taken shortly after the verdict was read, the pictures are from the front page of The Bowling Green Daily News. Yes, Flora well remembers hearing the verdict, but also how it all began:
“One day a young woman came to me for representation. All the other attorneys, she said, had turned her away since she had no money to hire a lawyer. She had been indicted for performing an illegal abortion on herself. Naturally, I agreed to represent her.
“As I learned more about Marla’s situation, I felt an immediate kinship with this young woman. For I had also once experienced the nightmare of an unwanted pregnancy. We were two women facing the unjust world together, and Marla’s cause became my cause.”
Throughout the summer, Flora and her co-counsel, Kelly Thompson, devoted considerable time and effort to preparing for Marla’s defense. Because the prosecution had refused to settle the case and allow Marla Pitchford to plead guilty to the lesser charge of assault and pay a small fine, there was no choice but to prepare for trial. The first step entailed the filing of motions in accordance with the Constitutional rights of the defendant.
“This woman killed her baby!” How well I remember Morris Lowe (the Commonwealth Attorney), shouting this in his strong Kentucky accent and glaring at Flora and the judge. The hearing was in response to a motion by the defense team contesting the charge of manslaughter, which was clearly in violation of the U.S.’s 1973 Supreme Court’s ruling in Roe v. Wade that the fetus was not a person. This landmark decision was built on the understanding that criminal laws banning all abortions infringed upon the Constitution’s right to privacy. Under Roe, abortion was allowed up until around 23 weeks.
In light of Roe, “Miss Flora” as she was addressed by Warren Circuit Court Judge J. David Francis (in the gracious southern tradition), raised objection to Lowe’s reference to the fetus as baby, victim, or any other such term of personhood. Judge Francis dismissed the manslaughter indictment in compliance with Roe v. Wade while the charge of performing an abortion without a licensed physician remained. Lowe, who was accustomed to persuading the jury with his emotionally charged rhetoric, looked taken aback.
The overriding defense motion was to quash the remaining abortion indictment altogether on grounds that it violated due process and equal protection clauses of the U.S. Constitution. The judge overruled this motion, explaining his logic in these words:
“Regardless of how badly worded this law is, it is the law of the state. Once the knitting needle had been discovered and reported by the hospital, the prosecutor had no choice but to indict. Otherwise, the people would have suspected a cover-up, and that would have been more damaging to public morale than any trial, no matter how cruel.”
At about this time, realizing this trial would be of feminist interest, I dropped a note to the editor of MS magazine. But I did not hear anything back. While the defense attorneys strategized on the case, the prosecutors focused on other matters, seemingly oblivious that the abortion trial was to be of national importance.
The first clue of the public attention to case came with phone calls from representatives of women’s organizations, such as the National Organization for Women (NOW), the American Civil Liberties Union (ACLU), and the Kentucky Abortion Freedom League (KPFL). While the former two were very helpful before and during the trial, the Kentucky pro-choice group was anything but. A leader from this group who visited Flora immediately after the indictment had her own ideas of how the case should be handled. For the purposes of having this as a test case, she and her organization felt it was important that Marla be convicted by the lower court. She could later win on appeal. As Flora remembers:
“My femininity was not greatly appreciated by this group, and I was later reproached by them. ‘You mean you intend to maintain control of this case?’ one of the group members asked. Later I learned the organization was paid $10,000 to sabotage the case. A male attorney from this group got involved at every step of the way. He even represented one of the witnesses for the prosecution. “
In contrast to the KPFL, the National Abortion Right Action League (NARAL) and NOW understood that the primary goal of the legal defense was to support Marla. To this end, they provided personal and financial support for Marla, and aided legally in her defense.
Once notice of the pending abortion trial came out in the syndicated press, the media coverage grew by leaps and bounds. Only then did the local news sources take notice. And of course, the prosecutor Morris Lowe. As Flora Stuart describes it today:
“I was successful in not alerting the prosecution to the significance of the case. Once the national media descended on Bowling Green, the prosecutors began a last-ditch effort to prepare.
“Meanwhile, Morris Lowe was frantically searching for Marla’s former boyfriend, Dwight Mundy.
Mundy was now living in Tennessee where the court subpoena from Kentucky would have no effect. When Mundy refused to come, Lowe had him indicted as an accomplice to the abortion (which he clearly had nothing to do with), then promised him immunity if he would appear for trial. Unknown to Lowe, we on the defense side were even more eager to get Marla’s ex-fiancé to take the witness stand and testify against Marla.”
Upon learning about the case, expert witnesses came forward locally and from out of state offering at their own expense to provide relevant testimony at the trial, and volunteers from the nearby college (Western Kentucky University) offered to gauge local sentiment in a community survey. The goal of the survey was to provide information to the defense attorneys that might be useful in jury selection. Results showed that the most desirable jurors would be intelligent women; they would be likely to recognize the tragedy of an unwanted pregnancy and might persuade others. Kind-hearted males would also be acceptable and those who were apathetic would do no harm.
So even before the trial, attention to the case was pronounced. Soon the law office was swamped with hundreds of letters, contributions, and phone calls. Local interest in the case was strong. Townspeople began to share stories they had heard of girls and women who died after botched abortions, and everywhere people could be heard expressing sympathy for the plight of one desperate college student who had taken matters into her own hands.
Luckily, there was little or no response at this time from the pro-life quarter. Apparently, their leaders did not know about the trial until interviewed by a reporter. When they finally began to organize and get prepared with busloads of people headed for Bowling Green, they were to discover that the trial had ended.
Community support for Marla Pitchford notwithstanding, it was legally necessary to find a way to justify a not guilty verdict. Clearly Marla had violated the letter of the law in performing an abortion outside the time period in which this would be allowed except if done by a licensed physician. Fortunately, Kentucky as most other states, offers an option, a way out, for juries in sympathetic cases to find a defendant who technically committed a crime not guilty. The defense can argue that although their client is not mentally ill, the client was momentarily of unsound mind or “temporarily insane” at the time the offense was committed. This same plea of not guilty by temporary insanity had been famously used only one year before in the defense of Francine Hughes in the so-called “burning bed” case. Following years of horrible and sadistic abuse, Hughes had set her husband on fire as he slept. She openly admitted her guilt. But the lawyer’s innocence-by-reason-of-temporary-insanity won her acquittal.
In a press interview in mid-August, Flora Stuart announced the defense’s decision to argue that Pitchford was not guilty by reason of temporary insanity. This announcement was not well received in some feminist circles and regarded as a cop-out. Phone calls came in urging some other defense. Such a plea only makes women look weak, it was argued, and it does nothing to further the cause of women’s rights. “While some women’s rights groups were upset with my plea of temporary insanity,” Flora says today, “I obtained an acquittal for my client.” First and foremost, Flora had her client’s best interests at heart.
Pressure on the defense attorneys on how to handle the case continued. A high-powered male attorney sent by KPFL from Missouri even rushed up to the judge at one point and almost demanded that he join the defense team. I well remember this lawyer trying to take over the case. The judge did not seem to appreciate this interference with local justice and ordered him to sit in the back of the courtroom.
Selection of the Jury
A truth commonly spoken in legal circles is that cases are won or lost according to who sits on the jury. During the voir dire (the process of jury selection), potential jurors are asked if they had heard about the case and if so, if they can form an opinion concerning the facts without bias. Each side to the proceeding gets to strike a certain number of people for any reason who are called to be interviewed about their fitness to serve.
I was delighted to be asked as a sociologist to aid in jury selection. From the jury pool list, we already had checked off the ones likely to be liberal on the abortion issue. This included several college professors from Western Kentucky University and members of mainline churches. Seating charts were drawn of all potential jurors, and the questioning began. The first questions related to what these people knew of the news coverage, and whether or not the news reports would prevent them from fairly deciding the case. I remember one man’s bold reply: “You’d have to be deaf or blind not to have heard of this case.”
Kelly Thompson, Flora’s co-counsel, took the leadership in this process from the defense side. Both the prosecution and the defense questioned individuals concerning their beliefs about abortion and their relevant moral and religious beliefs. Most of the jurors described their affiliations with various Protestant denominations. The one prospective juror who described himself as Catholic was one of those removed by peremptory challenge. Potential jurors—26 in all—declared they were opposed to abortion. They were dismissed from jury duty by Judge Francis on the basis of likely bias.
While the voir dire process was going on, the only spectators in the courtroom were reporters and spectators with a strong political interest in the case. At that time cameras were not permitted in the courtroom. News reports later noted that the defendant wept silently during the process, comforted by her mother at her side. Because of the anticipated TV and newspaper coverage, the jurors were sequestered for the duration of the trial.
In his opening statement, the prosecutor laid out the facts of the charges with a focus on Marla’s confession and plans to call witnesses, such as two police officers, to substantiate the facts.
In her opening statement, Flora Stuart presented the case for the defense in dramatic terms. Facing the four women and eight men on the jury, she dramatically laid out the tragedy of what a young woman who had dreamed of wearing a white wedding gown had endured—rejected by her boyfriend who turned on her and claimed she had ruined her life, turned away from the abortion clinics in Louisville and Nashville, and without funds to go to a state far away, hysterical and feeling trapped in a hotel room away from the protection of her family and friends. “You will hear,” Stuart said, “this tragedy unfold in this courtroom. I only ask that you place your heart in the heart of Marla Pitchford and ask yourselves what you would have done in this situation?
“I further remind you that never before in the history of this nation has a young female been put on trial for abortion—quacks, yes! But not the woman. Bowling Green is a kind, compassionate community, and we the people will shed our mercy on Marla Pitchford.”
Even that first day of the two-day trial, the courtroom was packed. All the major TV networks were covering the trial as were members of the national and local press. Reporters from Time magazine and Newsweek were present. Court artists were sitting around the room drawing portraits of the key participants in this trial.
The Case for the Prosecution
While the defendant, with her mother at her side, wiped back tears, the prosecution called a police detective to read the statement the defendant made in the hospital. None of the facts were contested by the defense. Great efforts had been made by Commonwealth Attorney Morris Lowe to get testimony from Marla’s former fiancé who was granted immunity for prosecution if he, Dwight Mundy, would appear. And it did. Unknown to Lowe, Flora Stuart was especially anxious to have the opportunity to cross examine this witness. Through her sharp questioning, she was able to get the witness to concede “After I found out she was pregnant, we no longer discussed plans of marriage.”
As reported in a news account from June 1978, the following dialogue took place.
Stuart: “Is it true that you dumped her? You drove her to the abortion clinic, and the whole thing was your idea?”
Mundy: “Yes. It was my idea, and yes, I did drive her. I couldn’t afford a child….”
Stuart: “Do you believe you should be set free, and Marla here should suffer 10 years in prison?”
Mundy: “I don’t know.
In response to Lowe’s question if he had anything to do with the abortion, his witness replied, “I had nothing to do with it.” Under cross examination, Flora seized the opportunity to ask: “You mean you had nothing to do with getting her pregnant?”
Mundy: “I didn’t mean that.”
Stuart: “You try to live with yourself! I am completely through with this witness.”
Courtroom spectators could hardly contain themselves upon hearing this testimony. Later I read in a news report, that as Mundy went to his car, a group of women reporters surrounded his car, yelling at him as he tried to drive away.
The Case for the Defense
A lineup of 18 expert and character witnesses presented testimony that consumed most of the following two days. Dr. Nickolas Kafoglis, a leading gynecologist and former state legislator when the Kentucky statute was passed, was especially knowledgable. He stated that Marla had barely survived the uterine infection she experienced following the abortion and that without emergency medical treatment she would have died. And because of the damage done to her body, there was a chance she would never be able to have children. With reference to the law, Kafoglis explained that it was a Kentucky law recently enacted with the intent to protect women from unscrupulous doctors. It was not intended to apply to the women themselves. At the end of his testimony, I distinctly remember him saying, “It would be a foolish thing to do, but you don’t put a man in prison for 10 years for taking out his own appendix.”
To establish Pitchford’s state of mind at the time she drove the knitting needle into her body, two psychologists and one psychiatrist were called to the stand. Dan Johnson, a psychologist with whom Marla was in treatment since her indictment, described his client as having symptoms of “hysterical neurosis” which rendered her highly vulnerable in a time of crisis. A second psychologist focused on Marla’s statement which she argued should be discounted as she was under heavy medication in the hospital at the time the statement was given.
Because Dr. Green’s testimony was crucial to the defense of temporary insanity, and because he had been appointed by the court to conduct a psychiatric examination of the defendant, his testimony was saved for last. The loss of cognitive function, as Dr. Green explained, does not mean that an individual is mentally ill, only that in a moment of extreme emotion or panic, the individual might be inclined to take drastic action. “Marla wanted to have a baby,” Dr. Green continued, “and was extremely upset by her boyfriend’s reaction.” The self-abortion he viewed as a symbolic suicide. This act, he said, was brought on by fear of what her Baptist parents would say if they knew she was pregnant and fear that her boyfriend would leave her.
The decision was made not to have Marla Pitchford testify on her own behalf since such testimony would have been extremely painful for her and very difficult to endure cross examination. Marla’s only testimony was her sobs that could be heard throughout the trial.
Every seat in the courtroom was taken on this, the final day of the trial. According to later news reports there were 32 reporters and photographers who were cautioned by the bailiff and later by the judge that they were not allowed to take pictures in the courtroom.
There was very little the assistant prosecutor, Tom Lewis could argue beyond the fact that Pitchford had confessed to the charges. His primary argument was that instead of focusing on the responsibility of their client, the defense attorneys merely wanted to divert blame onto her boyfriend. At one point the prosecutor sarcastically asked, “She placed a needle in her body; why not her heart?”
Then speaking for the defense in her soft southern voice, Flora Stuart rose to the occasion. Taking advantage of the wealth of favorable testimony that had been offered on both sides, Stuart summarized the tragic recent events in Marla’s life, her hopes to get married and have a child—all this dashed by her boyfriend’s reaction to her pregnancy and pressure to have an abortion, and then her distress at being turned away from two abortion clinics because their policy limited abortions to within 18 weeks pregnancy.
“The defense does not contest the substance of the statement that Marla made,” Flora Stuart said. “And it does not contest that, in a moment of panic, Marla Pitchford took the knitting needle she had been using to knit an afghan and thrust it into her body. The defense does contest the disregard of Marla’s mental state at the time. We heard from psychiatric testimony of the young woman’s moment of panic. And Marla described the state she had been in in her statement that was taken the morning after
Pitchford underwent labor. She wanted to tell the world she deserved to be punished.”
The attorney’s tone of voice noticeably changed as she recalled the words of the prosecutor’s chief witness, about how he had driven Marla around at his insistence to get an abortion coupled with his refusal to marry her. “This young woman,” she said, “has seen her dreams of a white veil and wedding dress and love vanish in a sea of despair. “
“Judas sold himself for silver,” she continued. “Dwight Mundy sold himself for convenience. It wasn’t convenient for him to have a child.”
Flora then glanced from Marla to the jury and captured the drama of the moment with these final words: “Who was the victim here?” After a pause she likened Marla Pitchford to Hester Prynne in the book The Scarlet Letter. Time Magazine characterized this moment in their article, Nation: The Scarlet A “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.”
Stuart asked, “Can you jurors deem a greater punishment for Marla than Hester received in the 1600s?”
In his instructions to the jury, Judge Francis told the jurors to return a not-guilty verdict if they found Pitchford was of unsound mind at the time of the incident. After a remarkably short deliberation the jury of four women and eight men found Marla Pitchford not guilty by reason of temporary insanity. Spectators broke the rules and clapped when the verdict was announced. Some of the jurors rushed up to Marla and hugged her. There was joy in Bowling Green that afternoon, and even the prosecutors had smiles on their faces. “I am not unhappy with the verdict,” the assistant prosecutor said. “My heart went out to her.” It was his hope that the law, he told the press, would be changed as it was intended to refer only to quack doctors.
There were headlines of the acquittal worldwide in the evening news and continuing throughout the following week. The local TV station announced to the Bowling Green public that night to tune into Good Morning America the next morning to watch interviews with Marla’s attorney, Flora Templeton Stuart. In its article on the trial, Time magazine juxtaposed a picture of Marla alongside an almost look-alike drawing of Hester Prynne from the 19th century Hawthorne text.
Lessons for Today
Without the appeal of a college student from small-town Kentucky with whom most jurors could identify, without the community support and meticulous work by the defense team that went into case preparation, without the possibility of the temporary insanity plea, and above all, without Roe v. Wade, Marla Pitchford would have been convicted of a crime. The focus of her prosecution would not have been on the tragic situation of a young woman but on the personhood of the fetus.
The U.S. Supreme Court ruling in 1973 not only gave people the legal right to access abortion across the country for almost 50 years — it also prevented many deaths from unsafe, illegal abortions. As spelled out in Roe v. Wade, the fetus is not as a person. Once the fetus is personified, laws change, and the rhetoric changes. The use of terms such as unborn child, manslaughter, homicide, and child abuse shape the discourse. The notions that life begins at conception and that the fetus has a status separate from the woman who carries it is expected to fuel the criminalization of women who seek an abortion, even through use of prescribed medication
In the absence of federal protection of abortion rights, the way is paved for the banning of legal abortion completely in some states, and for limiting legal abortion to a mere 15 weeks in others. The effect of this loss on women’s rights is monumental. The new laws carry implications for women’s reproductive rights in general and will shape politics for decades to come. The prosecution of Marla Pitchford was the first time in U.S. that a woman was on trial for performing an abortion on herself. But it will not be the last.
Guest Author Katherine Van Wormer
Professor Emerita of Social Work
University of Northern Iowa
co-author “The Maid Narratives”