In 1778 Bathsheba Spooner was sentenced to death for the murder of her husband. She pleaded pregnancy, and according to Massachusetts law at the time was examined by a jury of 12 matrons. The jury found that she was not “quick with child” and the execution was ordered to continue. However, at her own plea and the intervention of a local reverend, Bathsheba was able to procure a second examination, which included two midwives and a physician. Although the second jury called for a reprieve, the council ignored them. She was taken by carriage to the gallows despite the tradition at the time for those condemned to death to make the journey by foot, because she was “exceedingly unwell” due to her examinations [1]. Shortly after her execution an autopsy was performed and “a perfect male foetus of the growth of five months or near it was taken from her [2].”
Bathsheba’s brief and tragic encounter with the intersection of capital punishment and pregnancy in the U.S. represents both the most historically documented case of a pregnant woman condemned to death and a fitting place to begin a brief history of how physicians, in their effort to professionalize medicine in the 18th and early 19th centuries, may have shaped death penalty statutes. Bathsheba’s case was the first I encountered when I embarked on this research. I have worked in the intersection of incarceration and women’s health as a public health practitioner and researcher for 10 years. In 2019 I began to explore with a group of public health colleagues the current state and federal statutes that impact the maternal health of incarcerated people. A systematic search in WestLaw disclosed a group of statutes our team never anticipated: 25 states and the federal government have statutes prohibiting the execution of pregnant women sentenced to death. In the current criminal legal context, these statutes are odd.
Women make up only 2% of those sentenced to death since 1976 [3]. Furthermore, the average length of the capital appeal process from sentencing to execution is 20 years. There have been no known recent cases of a woman sentenced to death becoming pregnant during her incarceration [4]. Thus, the obvious question is why do these statutes exist? This question led me into an ongoing historical research project, which has primarily served to generate even more questions.
However, a few answers have been forthcoming. Pregnancy reprieves in capital punishment were imported to the U.S. colonies through British Common Law. This stipulated that women “quick with child,” a term meaning that the movements of the fetus could be perceived, usually occurring around 18-20 weeks of gestation, must be allowed to give birth before being executed. In British Common Law, and in the handful of state statutes codifying pregnancy reprieves until the mid-nineteenth century, a “jury of matrons” determined whether a sentenced woman was in fact pregnant [5]. The inclusion of a jury of matrons in state statutes became an unexpected target in the campaign waged by U.S. physicians to supplant lay women as the preferred providers of care during pregnancy and childbirth.
Bathsheba’s examination ordeal speaks to the state of transition in the medical field at the close of the eighteenth century. By 1750 American physicians were returning after medical training abroad. In France, access to laboring women in public hospitals allowed physicians to better understand and develop techniques for assisting in labor and delivery. French physicians had also described and popularized the medical use of what was colloquially called “the touch,” or the manual examination of the cervix to ascertain pregnancy or the progression of labor [6], which was what had discomfited Bathsheba.
In bringing this “new midwifery” to the colonies, American doctors entered an open market. Pregnant and laboring women had traditionally been attended by female lay midwives, and occasionally male “barber-surgeons,” the latter only called upon in dire need. The business of pregnancy and birth was unregulated, and physicians had to compete with more established midwives [6]. While surprising from today’s perspective, the primacy of physicians in the birthing room was not a foregone conclusion. Although they had access to and some training in the use of instruments, they had to contend with social mores of modesty, the tradition of birth as a family affair, and their clients’ fear of the consequences of the use instruments to aid in delivery. If doctors wanted to be the preferred care provider for pregnant women, they would have to address these concerns as well as professionalize the field and standardize training [7].
Over 100 years later, in 1878, the field of medicine was well on its way towards professionalization. The American Medical Association was founded in 1847, and in the 1870s medical schools began to improve medical training. However, Victorian mores had entrenched the issue of male medical care as a violation of modesty. Critics of the newly minted “obstetricians” railed against practices like the “touch” as obscene and called for female care for female patients. The battle for physician supremacy was far from won [6].
In response to this charge, physicians made arguments in lay and medical journals based on physicians’ expertise. One argument, put forth by the physician J.W. Underhill, specifically targeted pregnancy reprieves. Writing on the topic of false pregnancies for a medical journal, Underhill attacked the codification of juries of matrons, arguing that physicians were the only people equipped to accurately determine pregnancy. “How are women,” Underhill wrote, “who are so frequently deceived concerning their own condition in this respect, to judge correctly of the existence or non-existence of pregnancy in others [8]?” Underhill called for states to modify pregnancy reprieves to ensure that physicians were the examiners. While there is no evidence of concerted physician advocacy to change these laws, juries of matrons disappeared from pregnancy reprieve statutes, replaced by physicians.
It’s difficult to say exactly when juries of matrons were last used in the U.S, or when each state amended its statutes to exclude them. Underhill writes that some time before 1878 Ohio had amended its statutes in favor of a panel of physicians. New York’s 1875 pregnancy reprieve also calls for a panel of six physicians rather than a jury of matrons [9]. Although spotty state historical records make it difficult to pinpoint when juries of matrons were officially written out of pregnancy reprieves, records of the use of juries of matrons exist in the U.K. as late as 1917 [10]. Sometime between the late nineteenth century and the early twentieth century physicians became the primary legal experts in the guesswork of determining early pregnancy.
The subject of capital punishment and pregnancy in the law continues to fascinate me. The fact that these statutes are still active in many states to this day speaks to their continued importance to lawmakers, despite the extreme rarity of their application. Yet, the question remains open as to why these anachronistic laws continue and how they have been applied pregnant women. I am actively exploring these and other questions and hope to share my progress soon.
Biography: Bethany Kotlar is a doctoral candidate in Population Health Sciences at Harvard T.H. Chan School of Public Health. Her work focuses on the impact of mass incarceration on maternal and child health in the United States.
Image credit: ‘The Touch’, 1822 – Image of an obstetric examination by Jacques Pierre Maygrier (1771-1835) from wikicommons
[1] Deborah Navas, Murdered by His Wife (Amherst: University of Massachusetts Press, 1999), pg. 98 [2] Thaddeus Maccarty, The Rev. Mr. Maccarthy’s [Sic] Account of the Behaviour of Mrs. Spooner after Her Commitment and Condemnation for Being Accessory in the Murder of Her Husband at Brookfield, March 1. 1778, vol. no. 43485. (Boston? publisher not identified, 1778). [3] Atwell, Mary Welek. Wretched Sisters: Examining Gender and Capital Punishment. Second edition. Vol. 20. New York: Peter Lang, 2014, pg. 7 [4] Gavin Lee and Robert M. Bohm, Routledge Handbook on Capital Punishment (Taylor and Francis, 2017), https://doi.org/10.4324/9781315624723. [5] Thomas R Forbes, “A Jury of Matrons,” Medical History 32, no. 1 (1988): 23–33, https://doi.org/10.1017/S002572730004758X. [6] Wertz, Richard W. Lying-in : A History of Childbirth in America. New York: Schocken Books, 1979. [7] Donegan, Jane B. Women & Men Midwives : Medicine, Morality, and Misogyny in Early America. Women and Men Midwives. Westport, Conn.: Greenwood Press, 1978. [8] J W Underhill, “OBSERVATIONS ON PSEUDOCYESIS, AND ON PREGNANCY IN ITS RELATION TO CAPITAL PUNISHMENT” The American Journal of Obstetrics and Diseases of Women and Children (1869-1919), (1878): 21-37. [9] New York (State).; Cothran George W. Revised Statutes of the State of New York. Albany, Banks & Brothers. [10] Oldham, James. Trial by Jury : The Seventh Amendment and Anglo-American Special Juries. New York, NY: New York University Press, 2006.
