Leslie J. Reagan

Rashes, Rights, and Wrongs in the Hospital and in the Courtroom: German Measles, Abortion, and Malpractice before Roe and Doe

When women contracted German measles in early pregnancy, they were "entitled" to therapeutic abortion, according to one 1959 magazine.¹Williams Obstetrics, the standard medical textbook, advised doctors that therapeutic abortion was "justifiable" in such cases if the pregnant woman and her husband decided upon it.² German measles (also known as rubella) was first recognized as a teratogen by an Australian ophthalmologist in 1941. Exposure to the disease in early pregnancy could damage the developing fetus, causing deafness, blindness, heart defects, and mental retardation in newborns as well as miscarriages, stillbirths, and infant deaths.³ Aware of the disease's effects, thousands of pregnant women who contracted German measles avidly sought abortions.⁴ Yet, as many learned in the 1950s and 1960s, the decision to carry a possibly affected pregnancy or have a therapeutic abortion was not clearly in their hands at all. Physicians refused to perform therapeutic abortions, their legality was uncertain, and hospital policies were designed to limit their numbers. An unknown number of women who knew they had contracted the disease and understood the implications were denied therapeutic abortions, and later gave birth to severely harmed children. Some of them sued their doctors for malpractice. Barbara Stewart and Sandra Gleitman, with their husbands, brought two early cases, Gleitman v. Cosgrove (1967) and Stewart v. Long Island College Hospital (1970 and 1972).⁵	1
The original suits aimed to right specific wrongs: they were brought against physicians and hospitals for giving inaccurate information, for falsely reassuring patients, and for preventing the patient—the pregnant woman—from making decisions about her own family and her own health care. The failure to provide accurate information—about disease and the possibility of abortion—then resulted in the birth of a malformed child. Barbara Stewart and Sandra Gleitman went to court for themselves and for their children, insisted on patients' rights to accurate medical information and self-determination, sought recognition of the needs of disabled children, and advanced reproductive rights. In the process, they developed a new area of tort law that later came to be known as "wrongful birth" and "wrongful life" suits, torts first articulated during the German measles epidemic of the early 1960s.	2
Although treated as bizarre by some in the judiciary when first brought, within a decade these types of cases had revised law and medical practice. In the wake of the nationwide decriminalization of abortion following Roe v. Wade (1973) and Doe v. Bolton (1973),⁶ these suits gained legitimacy. Indeed, the Stewart case exemplified the hospital system of abortion review committees that Doe found unconstitutional for violating a woman's right to privacy and a doctor's right to practice medicine. Today, most states permit "wrongful birth" suits claimed by parents; a few allow "wrongful life" suits on behalf of the child.⁷ The success of "wrongful birth" suits in the 1970s and 1980s spurred the routine use of amniocentesis in the United States.⁸ In her sensitive study of the practice and meanings of amniocentesis in the United States, anthropologist Rayna Rapp recognizes women today who use new technologies of genetic testing to learn about the health status of their fetus and make decisions about the future of their pregnancies as "moral pioneers."⁹ At a time when abortion was a crime and contraception illegal in some states before Griswold (1965),¹⁰ Stewart and Gleitman were not only "moral pioneers," they bravely became legal pioneers.	3
A wrong that has never before been taken to court requires special work to be translated into law and to be understood as an injury that requires redress. For the person who believes her- or himself injured, the perceived wrong has to be presented in legal terms and through a formal legal process. The formal legal complaint is a translation of an ordinary person's sense of having been mistreated. This essay is about that process of translation as it is represented in court. Historians have tracked long-term trends and the growth of malpractice through hundreds of judicial opinions.¹¹ Legal scholarship on "wrongful birth" and "wrongful life" has focused primarily on the validity of these torts in relationship to the legality or morality of abortion and, secondarily, on the implications for the disabled.¹² Rather than assessing morality, this history places two early, precedent-setting cases in context and illuminates the experiences and expectations of ordinary families caught in the dilemmas of German measles at a time when abortion was illegal¹³ and the prospects for children born with intellectual and sensory impairments were believed to be very dim.¹⁴ I look in detail and in depth at the original trial records of Gleitman v. Cosgrove and Stewart v. Long Island College Hospital in conjunction with medical and media materials to illuminate legal and medical practices. The legal records analyzed here include a trial transcript running over seven hundred pages, briefs submitted by opposing attorneys, as well as published appellate opinions. In closely analyzing these cases, we may observe an expansion of medical malpractice and medical protection in the making.	4
The complete trial record offers an unusual opportunity to learn both what ordinary people thought about the rights of patients and to analyze the subtleties of physician-patient communication and physician decision making. These cases offer intimate insight into the experiences of specific individual women and their families and the words and practices of specific physicians and hospitals. They are more than stories about individuals, however. They offer in microcosm a rare view of the intricacies and power dynamics of medicine. As such, these trial records are invaluable for understanding the era. Detailed documentation of patient-physician interactions are rare. First, most medical interactions and decisions are not recorded except in terse (and often closed) medical records. When there are medical errors or disputes, few of these events ever go to court. Even today, fewer than 10 percent of patients with a valid complaint even begin to pursue damages. Most of those who contact an attorney soon give up; less than 2 percent file a suit.¹⁵ Few cases go to trial, and very, very few are appealed and thus required to produce a printed trial transcript that will be held permanently in the state archives and available to the historian later. Malpractice suits may thus represent other similar experiences and deeper dissatisfaction with medicine that are lost to the public record.¹⁶	5
As much as these records show how the legal process forced light upon medicine and revealed some of its inner dynamics, the legal process also suppressed critical information. The limitations of the legal record become apparent when it is put in conversation with popular media of the time and the larger social, medical, and political context. Close textual and contextual analysis of these rich and intricate records produces a more complete picture of the subtle ways in which manners, reputations, class, religion, and race shaped medical practice (and malpractice). This case study also illuminates how knowledge and information about bodies, disease, and the medical system is actively revealed and equally actively hidden in different venues and different types of texts. Analysis of what is said and not said—in the doctor's office, in the courtroom, in magazines, and in news media—demonstrate how the spaces themselves and the social hierarchies and rules of power and communication shape what is known at the time as well as the historical record and what is understood later.	6
Seeing that her 15-month-old daughter, Robin, had a fever and "fine bumps all over her body," Barbara Stewart took her to the emergency room at a nearby Brooklyn hospital in April 1964. Robin had German measles. Soon Barbara Stewart had a rash herself all over her body and a few days later she saw Dr. Wolf J. Domsky who found that she had German measles as well. Her period was also two weeks late. Dr. Domsky told her to come back in a week for a pregnancy test. In April 1964, the U. S. Public Health Service announced that the entire nation was in the midst of a German measles epidemic and advised women in early pregnancy to avoid the disease and avoid school children who spread it. "For a woman who catches the virus in the first three months of pregnancy," Newsweek reported, "there is the risk of a retarded or malformed child." New York City had 200 cases per day, twenty times more than the year before.¹⁷ The Stewarts read the news reports with alarm. When she saw her doctor again, she recalled, "I told him about I had read an article concerning German measles and the pregnant mother...." Her husband also talked with the doctor "about what I had read in the paper and he confirmed that, and said that she should have an abortion, a therapeutic abortion."¹⁸ With knowledge drawn from the newspaper and "confirmed" by her doctor, Barbara and Robert Stewart understood that having German measles early in pregnancy could mean dire consequences for their future child. With this knowledge, they turned to their local hospital for a therapeutic abortion. And so began their entry into the labyrinthian world of hospital abortion committees.	7
This is almost all we know about these early moments of learning of the implications of German measles and the Stewarts' decision to seek an abortion for a pregnancy they wanted and a child they hoped for. One would like to know more. What were Barbara Stewart's feelings early on, did she walk in to Dr. Domsky's office hoping that he would not corroborate the news she read? What did she think about therapeutic abortion—did she face it with dread, reject it, or immediately see it as necessary? Unfortunately, after testifying in a later malpractice suit that Dr. Domsky wrote a letter detailing his diagnosis, Mrs. Stewart was not allowed to say more about her conversation with Dr. Domsky or anyone else. Her testimony was reduced to Yes or No answers. What she said, what her views and worries were, what advice her doctor gave could not be told in the courtroom and are missing from the record. From her husband, we have one tiny hint of the Stewarts' concern and thinking, "We thought about it, and we discussed it with the minister of our church and we discussed it with other members of our family."¹⁹	8
We get a hint of the hard thinking that Rapp finds and documents among all who contemplate or use amniocentesis today.²⁰ We do not know the pain expressed, what they weighed, how conversations swayed, the strength of feelings—the legal record discloses little emotional content, texture, or nuance. We know they talked and talked, thought and thought, and then the Stewarts went together to two hospitals for an abortion. The limits of the legal transcript as a historical record are evident. More important, the enforced silences in the courtroom masked the social processes of thinking and talking in "private" spaces. It is up to us to use our imaginations, as the jury surely did, to better comprehend the Stewarts' situation.	9
Although the trial record revealed only a bit of the Stewarts' pain upon discovery of the ramifications of rubella, it highlighted their personal commitment to obtaining an abortion. The Stewarts were not alone in their sense that abortion was the appropriate response to the dangers of maternal rubella. Popular magazines and newspapers reported on it and explored the difficulties and dilemmas of abortion for married women who welcomed their pregnancies.²¹ Pregnant women aware of the dangers of rubella came to doctors seeking abortions. When told that the normal background risk of "severe deformity" was 1 percent compared to a 50 percent risk when a woman contracted German measles in the first month of pregnancy, Dr. Robert Hall, a specialist in obstetrics and gynecology at Columbia University, observed, "I have yet to see a patient take the risk who was informed of the facts. I have never seen a person take that risk."²² Medical textbooks taught physicians that maternal rubella was an accepted indication for abortion, many hospitals permitted and provided "therapeutic" abortions for this reason, and a survey by Hall of New York state specialists in obstetrics found that over 85 percent supported liberalizing the law.²³ A prospective study of over 300 cases of maternal rubella in New York City, found that nearly two-thirds of the women had therapeutic abortions.²⁴ For many, abortion was the obvious thing to do in such a situation. A small minority of physicians, however, strenuously opposed therapeutic abortion for fetal damage, and this view was just entering public debate.	10
The Stewarts' malpractice suit shows that access to legal therapeutic abortion was systematically arbitrary and sensitive to individual bias. Dr. Domsky first sent the Stewarts to the closest hospital, Kings County Hospital, which wanted a certificate from the health department confirming the diagnosis of German measles and then, after receiving it, refused to provide a therapeutic abortion three weeks after her first visit. Dr. Domsky then suggested turning to the hospital where Mrs. Stewart had delivered her first daughter, Long Island College Hospital. He gave her a letter describing her symptoms and his diagnosis. On June 8, 1964, Mrs. Stewart checked into a semiprivate room at the hospital and over the next several days the therapeutic abortion committee examined her and noted their conclusions on her medical record. The Stewarts signed a paper consenting to a therapeutic abortion and six days after her admission, Mrs. Stewart received an injection of Demerol in preparation for surgery and was wheeled into an operating room. After some time, a nurse returned, told her she was going home, and wheeled her back to her room to dress. At the last minute the procedure was canceled. A doctor, Mrs. Stewart recalled, told her she did not need an abortion, "don't worry, ... the baby will be all right. And not to go any place to try to have one."²⁵ Unknown to the Stewarts, at least two doctors approved the abortion, but the director of Ob-Gyn, Dr. Robert Gordon, decided against it. Dr. Gordon, as he explained in court, read Dr. Domsky's letter as ambiguous, concluded that the physicians had split 2–2 (without talking or meeting), consulted with a physician who had earlier disapproved the abortion at Kings, and believed the pregnancy to be further along than it was, thus requiring an unfamiliar procedure. The Stewarts were informed of none of this. Nor were they advised that they might go to another hospital. Instead, the Stewarts understood the therapeutic abortion to be unnecessary and felt reassured. They did not consult further with Dr. Domsky, their general practitioner, but trusted the decisions and words of the specialists. As Mr. Stewart said, his views changed after listening to the hospital physician. "I was concerned, but I relied on the doctors. I believed them," he testified, "and when he said that she would be all right, my wife had been there and they had examined her, they had performed tests ... I took their word. I believed it."²⁶	11
Barbara Stewart gave birth to her daughter Rosalyn on January 4, 1965. From birth, records presented in court show, Rosalyn was identified as a "newborn female with Rubella syndrome"; her "mother had rubella in first trimester."²⁷ Giving birth to a "Rubella baby" was precisely what the Stewarts had tried to avoid. When they learned at birth that Rosalyn had a congenital cataract in her left eye and cardiac murmurs and later realized their daughter was also deaf, intellectually impaired, and unable to communicate, it was the culmination of all of their fears. Two and a half months after their daughter's birth, the Stewarts initiated their suit against Long Island College Hospital for failing to give Barbara Stewart accurate information about the dangers of maternal rubella and for taking away her right to make her own decision about her pregnancy and whether to pursue a therapeutic abortion. They sued on behalf of their daughter Rosalyn, the mother, Barbara, and the father, Robert. The Stewarts sued for prospective medical expenses for their daughter and for damages for the "mental and emotional havoc" on the family.²⁸ In 1968, almost four years after Rosalyn's birth, the suit came to trial. Barbara Stewart testified about the events during her pregnancy and about the circumstances of her own life and her daughter's. Rosalyn, she told the courtroom, never slept more than three or four hours at a time, cried often, and did not communicate or play with her parents, her sister, or other children. As Rosalyn got older, caring for her was getting more difficult. Furthermore, because no one was willing to watch Rosalyn and her mother had to attend to her constantly, Barbara Stewart found herself "upset" and "irritable."²⁹	12
In its almost-but-not-quite nature, the Stewart case reveals some of the elements involved in securing or not securing a therapeutic abortion. By the 1960s, for a physician to perform an abortion that was recognized as legitimate and legal by the medical profession, it had to be performed in a hospital with the approval of an abortion review board or committee. This system was a product of police crackdowns on abortion and medical conservatism and fear in the 1940s and '50s.³⁰ The creation of the therapeutic abortion review system represented a narrowing of access to abortion. The first circumstance to note in the Stewart case is that her doctor was an unknown to the physicians who acted as gatekeepers to therapeutic abortion. Dr. Domsky was a general practitioner without admitting privileges to any hospital. As such, he was unknown to the more privileged men who were specialists, who had reputations, hospital connections, and connections with each other, and who made decisions about therapeutic abortion. As an unknown GP, Dr. Domsky's letter and diagnosis were suspect. Kings Hospital treated it that way—by demanding verification from the health department—as did Dr. Gordon by his reading of Dr. Domsky's letter as "not 100 per cent certain that she had German measles." Dr. Gordon did not attempt to consult Dr. Domsky, but contacted Dr. Cohen whom he knew at Kings and then used the outcome at the previous hospital to help determine and justify his own decision.³¹ Hospitals had their own reputations to worry about as well, and public hospitals like Kings could be especially vulnerable to newspaper exposés and political threats. Taking care to avoid trouble by avoiding abortions and possibly dishonest patients made sense from their perspective. Physicians and hospitals had their own worries, but from the perspective of the patient, having an unknown general practitioner as her physician appeared to hurt her case.	13
Connections were key. A woman who did not go to a well-respected, well-connected specialist in the first place, would be likely to have a tough time having a therapeutic abortion considered. Women in the know—through friends or medical connections within their own family and friendship networks—as well as those who naturally saw the most well-to-do and well-known physicians because of their privileged and wealthy status, would be most likely to learn about German measles, therapeutic abortion, and to get quick action at the appropriate private hospital. Yet most women—working-class as well as middle-class women, women who received public aid and/or went to public hospitals, women of color, immigrant and non-English-speaking women—would not have those connections to elite physicians or typically see specialists. Indeed, at trial, a physician explained that Kings County Hospital's ob-gyn department required that a pediatrician diagnose rubella in the pregnant woman. As the Stewarts' attorney pointed out, few adults would go to pediatricians or realize that the hospital demanded diagnosis by a specialist.³² It seems likely that Dr. Domsky suggested going to the Long Island hospital because Mrs. Stewart would be known as a previous patient and might thus be trusted and granted an abortion. The need for trust based on personal or prior relationships with highly regarded members of the medical profession to win approval for a therapeutic abortion would ensure that almost all therapeutic abortions would be for privileged white women with private hospital rooms.	14
The need for connections may explain much of the documented difference in therapeutic abortion rates among women. National surveys and New York City studies showed stark differences in the number of legal therapeutic abortions performed for those with private rooms and those on public wards, and between white, black, and Puerto Rican women. Private patients received four times as many therapeutic abortions as did ward and public hospital patients. White women received over 90 percent of these legal abortions in hospitals.³³ Class inequality in access to hospital-performed abortions may have been built in structurally as well. In one San Francisco–area hospital, private cases required the approval of one staff obstetrician; "clinic cases," in contrast, were "reviewed by the entire OB-GYN Staff at a meeting and the vote taken by the nine professors on the staff."³⁴	15
The details of Stewart's experiences at the Long Island College Hospital reveal the subordinating and humiliating practices built into the therapeutic abortion system. Since abortion had been made a crime in the nineteenth century, the profession had learned to distrust women who sought abortions and to assume they faked illnesses and lied. Operating on these assumptions and afraid for their own legal vulnerability, the profession constructed various means of ascertaining the truth, including therapeutic abortion committees.³⁵ One excruciating method is detailed in the Stewart case, that of repeated gynecological examinations by different physicians. In the hospital for six days, Barbara Stewart had four gynecological exams—all by male doctors she had never before met. Pregnancy had already been confirmed by test; did each man have to know and confirm by his own individual touch, by his own hand, the state of her pregnancy? Not only did physicians act within a system that distrusted pregnant women, but the examinations suggest that physicians did not trust one another's diagnoses. More broadly, perhaps, the routine indicates that the knowledge a physician needed in order to make a recommendation was, in the end, individualized, even intimate. Probably most women, even in the 1960s when gynecological examinations by male physicians had become the norm, would have felt uncomfortable with this process.³⁶ Plenty would avoid enduring so many examinations if they could. In fact, it was well-understood that no woman would go through the process of psychiatric, medical, and gynecological examinations demanded by therapeutic abortion committees unless the medical indication was real and her situation desperate.³⁷ For at least some physicians, the examination process was a deliberate method of reducing the number of requests for abortion.	16
Judge Charles J. Beckinella himself expressed the distrust of pregnant women and the need to substantiate a diagnosis of German measles, saying that one could not have "any pregnant woman just walking in and saying, 'Listen, perform a therapeutic abortion upon me because I contracted German measles' when as a matter of fact, she never did." The witness Dr. Irvin Cushner of Johns Hopkins replied dryly that in the midst of an epidemic in fact they had done exactly that if a patient came in and "described a classic picture" of the disease.³⁸	17
Perhaps the reader has noticed that I have not given any sociological information about the Stewarts. Robert Stewart worked at the Brillo Soap factory and Barbara Stewart was a bookkeeper who worked nights at Chase Manhattan Bank. The Stewarts, originally from North Carolina, regularly attended a Pentecostal church in Harlem. They were African-American.³⁹ Did their race matter in this case? Up to this point, race has been invisible in this discussion of German measles, birth defects, and the Stewart case. The media's portrait of German measles painted the woman with a "tragic pregnancy" and the (expected) children harmed by the disease as white and middle class.⁴⁰	18
The courtroom and legal processes produced a color-blind legal record. Race is invisible in legal commentary on "wrongful birth" cases, invisible in the published opinions on the case, and virtually invisible in the more than 700-page transcript of the civil trial. The Stewarts' attorney attempted to raise race and class, but prejudice and privilege were not directly discussed or named. The courtroom constrained the ability of expert witnesses to speak directly about racial and class differences in access to abortion. Dr. Christopher Tietze, an expert in medical statistics, was ready to detail the different abortion rates in public vs. private hospitals and the "ethnic distribution" of therapeutic abortion in New York City where nonwhite patients received far fewer legal therapeutic abortions than did white patients, but the court excluded his testimony.⁴¹ Dr. Robert E. Hall illuminated a great deal on medical support for and practice of therapeutic abortion for rubella, but could not bring out that private paying patients received four times as many therapeutic abortions as the poor women in wards.⁴²	19
For Barbara Stewart, however, having private health insurance did not guarantee access to therapeutic abortion, for race helped determine access. To be more specific, blackness was a barrier. That her physician lacked a relationship to the physicians and hospitals who approved therapeutic abortions hindered Mrs. Stewart's ability to obtain a therapeutic abortion. And, because of the history of racism in medicine, as well as income differences, African-Americans would be more likely to have physicians who lacked those necessary connections. In a culture that regarded African-Americans as deceitful and suspect, how were African-Americans to gain the trust of unknown doctors? Simply being black and being seen could be enough for a series of negative associations of blackness with poverty, criminality, and distrust to come into play with the result that very few nonwhite women ever "qualified" for a therapeutic abortion. Furthermore, the historical treatment of black women as highly-sexualized objects, undermined African-American women's claims to medical trust and kindness based on their respectability.⁴³	20
Where race and color were brought into the trial was over the question of diagnosis. Much of the case revolved around the diagnosis of German measles itself. For a diagnosis of maternal rubella, textbooks included not only the physical symptoms of the woman herself, but also its occurrence during an epidemic and contraction of German measles among other family members as indicators. Long Island College Hospital staff neither registered the fact that Mrs. Stewart's daughter had had German measles nor took into consideration that New York and the country as a whole was in the midst of a serious epidemic. Furthermore, although Dr. Domsky wrote that Mrs. Stewart "evidently" had German measles, Dr. Gordon treated the letter as less-than-positive and focused on the fact that no doctor documented seeing a rash. Where the social relevance of skin color was never discussed, the medical relevance of color was. When the Stewarts' attorney asked Dr. Gordon about the "color of the rash," an interesting discussion of the colors of rashes and people began.	21

"THE COURT: What is the color of the rash?
THE WITNESS: Red.
BY MR. [NORMAN ROY] GRUTMAN:⁴⁴ On Caucasians, isn't that right?
THE COURT: What?
MR. GRUTMAN: On Caucasians it is red?
THE COURT: On Caucasians it is red....
THE WITNESS: That's true.
THE COURT: Have you ever seen it on non-Caucasians?
THE WITNESS: Do you mean on—
THE COURT: A colored person, an oriental or Negro....
THE WITNESS: I have seen regular measles. I don't think I have ever seen rubella in a Negro."
Grutman then pulled out a textbook, Holt's Disease of Infancy in Childhood, and read of the diagnosis of rubella, "Its identification in Negroes is almost impossible."⁴⁵	22
The judge's active involvement in questions regarding race, to the extent of answering the questions himself and defining a "colored person," reveal the high social interest in race. In 1968, in the midst of local and national struggles for black freedom, it would be hard to ignore race as much as the law tried to do so. We see here how social and political questions were biologized and raised through circuitous routes. Dr. Gordon took a rigid stance on the diagnosis of German measles, insisting on physician observation of a rash, a requirement made by no authority or textbook and scoffed at by other witnesses, in order to say no to an abortion in Mrs. Stewart's case. Indeed, research at the time showed that some people never had a rash though they did have German measles.⁴⁶ Yet Dr. Gordon insisted on proof of medical observation of a rash. Medical textbooks, however, declared seeing a rash to be virtually "impossible" among "Negroes."	23
The trial did not occur on paper though, it occurred in a courtroom where everyone could see each other. The law and witnesses were silent on color, but it was all in plain sight. The Stewarts were African-American and a newspaper article reported that the jury included two black men.⁴⁷ Presumably, then, the other ten (male) members of the jury were white. Since the writer did not report on the race of the Judge, attorneys, or physicians who appeared, we may safely assume they were all white. The contrast deserves to be noted: the legal system had adopted the convention of color blindness while the media presumed whiteness and pointed out deviation from the norm. The legal system's protocol represented equality under law, yet the practice of color blindness also meant silencing witnesses and blinding the law to the social relevance of race.⁴⁸	24
The Stewart case, and the ways in which information was shared, repressed, exposed, and not mentioned, also permit us to see the subtleties of how race and racism operated in medicine and in the larger culture. It has long been known that there were differences in therapeutic abortion rates by race and income (and evidence of racial differences in treatment today.) Yet there may be little or no evidence of overt racial discrimination. There is no evidence of obvious discrimination in the Stewart case.	25
The media's open interest in race offers a corrective, not only by providing useful demographic information, but also by exposing ongoing racial prejudice hidden by the legal world's efforts at equality. An opinionated article in Harper's magazine expressed support of the Stewarts (who were given pseudonyms in the article) and analyzed the racial and class inequalities in abortion practice and laws. Yet the article began with racist stereotypes. A TV producer, Marion K. Sanders wrote, might choose the "handsome couple" to star in a "documentary about upward-mobile young blacks in the urban jungle. Beatrice is small-boned, with the delicately rounded features of an elegant African carving.... [t]hey still speak in the accents of their native North Carolina. Their strapping six-year-old daughter ..."⁴⁹ This article about a case concerning how the disease of German measles presents on the body and its role in producing a "defective" body began by observing the Stewarts' black bodies. The writer described their bodies as beautiful, "elegant," and "African." Their older daughter was "strapping"—a key word right out of racist tracts describing slaves as well as criminal trials of black men. The bodies of the black family are placed in the naturalized, stereotypical, Africanized, and dangerous "jungle" of the city and, simultaneously, in the romanticized pastoral South. The Stewarts lived in Brooklyn, but they are other. The exoticized family served as the opening for a lengthy article on their case, on abortion practices in public hospitals, on abortion law reform, and on the "right to be born with a normal body and mind."⁵⁰	26
In contrast to the Stewarts, the Gleitmans had color on their side. The Gleitmans were white. Yet, Sandra Gleitman had not been able to obtain a therapeutic abortion either and gave birth to a son severely damaged due to maternal rubella. The Gleitmans too sued their doctors for malpractice for failing to inform them of the effects of German measles.⁵¹ Neither insurance coverage nor race alone explained the course of events for Barbara Stewart and Sandra Gleitman. Religion, together with race and income, was shaping medical decisions, information given to patients, and patient access to medical procedures.	27
In both cases, the religious views of their doctors played a decisive role. The Stewarts were Pentecostal Christians; the Gleitmans, Jewish; their doctors were Catholic. In identifying the religious beliefs of doctors and patients, these cases implicitly raised the religious underpinnings of medical decision making and whether patients have a right to religious freedom in their medical decisions. The Stewart and Gleitman cases both alluded to religious differences between patients and doctors and to the power of physicians to shape information and prevent access to abortions. In Stewart's case, a Jewish physician, Dr. Cohen, also denied her an abortion at Kings Hospital. Although there is no testimony from Dr. Cohen as to why, we know that public hospitals rarely performed abortions and had to be carefully attuned to the political consequences of doing so. Only a few years earlier, in 1958, controversy had erupted when a physician prescribed contraceptives, thus breaking an unofficial anti-birth-control policy at Kings Hospital. Cardinal Francis Spellman led a campaign against the physician and hospital commissioner, other religious organizations joined in the fray, and "after five months of uproar," the hospital board voted against banning contraceptives.⁵² Perhaps Dr. Cohen and his colleagues hoped to avoid starting another controversy. The Stewarts had consulted with their minister in the process of thinking about a therapeutic abortion. Sandra Gleitman had "no religious scruples or objections to a therapeutic abortion."⁵³ Both Barbara Stewart's physician, Dr. Gordon, and Sandra Gleitman's, Dr. Robert A. Cosgrove, Jr., adhered closely to their church's anti-abortion teachings and their decisions against therapeutic abortion grew out of those beliefs.	28
The doctors' disapproval of abortion, rooted in their Catholic faith, shaped their representations of medical knowledge and practice in such a way as to mute their patients' concern about the consequences of German measles. The doctors assured the Stewarts that an abortion was not needed and never informed them of the division among the hospital's doctors. The Stewarts trusted their doctors' assessment. They did not know that Dr. Gordon disapproved of abortion and had never himself performed a therapeutic abortion because he was Catholic.⁵⁴ In March 1959, Sandra Gleitman of New Jersey had German measles; a month later she saw Dr. Robert Cosgrove, Jr., who confirmed her pregnancy. Two doctors saw her initially, but neither Dr. Robert Cosgrove, Jr., nor Dr. Samuel Cosgrove, Mrs. Gleitman testified, warned her of the consequences of maternal rubella. When she later asked a third doctor specifically about blindness, he reassured her it would have "no effect." The physicians claimed they informed her. She testified that she asked about German measles during repeated visits but was repeatedly reassured that German measles would not affect her child.⁵⁵ When her friend, a nurse, expressed surprise that she was still carrying her pregnancy after German measles, Sandra Gleitman became alarmed. By then, two months before delivery, it was far too late to seek an abortion, but Dr. Jerome Dolan, she reported, told her it would not affect the baby.⁵⁶ In November 1959, she gave birth to her son, Jeffrey, and her doctors declared him to be "normal." A few weeks later, the new mother noticed that "he couldn't see and couldn't hear." He was blind, deaf, and intellectually impaired.⁵⁷ As I read the fragments of the Gleitman case, it seems possible that both sides of the suit told the truth.	29
But truth is no simple matter—truth includes power, interpretation, silence, and speaking. Here we can see how the power of the physician—power that drew on his medical expertise, his cultural authority, and the paternalistic and hierarchical form of the physician-patient relationship—shaped (and misshaped) understandings and events. Dr. Robert Cosgrove, Jr., may have informed Mrs. Gleitman, but he downplayed the risks of damage and did not inform her of the debate among physicians on this point. He said he told her of a 20 percent likelihood of damage. In the 1940s, the first physicians researching and reporting on rubella believed that a very high proportion of infants were harmed when women contracted rubella in the first trimester—perhaps up to 100 percent in the first few weeks of pregnancy—and they supported therapeutic abortion in such cases. Abortion for rubella was not unusual in Britain, Australia, or the United States. In the 1950s, an international debate developed as researchers attempted to ascertain the incidence of birth defects from prospective studies (which followed pregnant women exposed to German measles and tracked the outcome of their pregnancies) rather than from retrospective studies (which began with affected children and then went backwards to search for a cause).⁵⁸ As one 1957 report in the Journal of the American Medical Association (JAMA) concluded, "Rubella appears to increase the likelihood of malformations, but the high rates of incidence set by early authors are exaggerated. The recommendation of therapeutic abortion because of rubella should not be routine."⁵⁹ This study by the New York City Department of Public Health of 104 pregnant women who contracted rubella showed "congenital deformities among the live-born babies of women with rubella during the first trimester" was 9.7 percent. This figure was much less than originally described. Yet the report also showed that of the total number of cases, only 27 percent of the women gave birth to normal infants. There were a number of women of whom they lost track and somewhat higher rates of miscarriage and stillbirths, which received little attention. Finally, almost half of the women had therapeutic abortions. This last deserves to be underlined: almost half of the women identified had therapeutic abortions. It makes it obvious that many pregnant women, with the help of their doctors and hospitals, acted decisively to avoid the possible damaging effects of German measles. Although the authors emphasized that the risk of malformations was much lower than earlier researchers had expected and that "blanket advocacy of therapeutic abortion" when women contracted the disease in early pregnancy was "unjustified,"⁶⁰ they did not suggest that therapeutic abortions should not be considered or should be restricted.	30
Instead, this New York study suggested that women be apprised of the research and the risk of deformity. Then, it was up to the woman to consider that information. Her "risk," however, was not about the likelihood of malformations alone. Instead, it depended on the likelihood of deformity, on the individual's assessment of her own fertility, and her own willingness to continue the pregnancy with this knowledge of possible damage due to rubella. "If the woman is young, has a child or two, and does not find it difficult to conceive, she may not want to take the extra risk, even if it is not large. On the other hand," the authors suggested, "an older primipara [first-time pregnancy], particularly one who has found it difficult to conceive, will be willing to take the risk."⁶¹ Risk, then, had two components: first, the probability of rubella harming the fetus (about which there was much disagreement and which varied with the timing of infection and the stage of pregnancy) and, second, the expectation of how easy or difficult a future conception would be. Most important was not the physician's or statistician's assessment of risk and what was reasonable, but the woman's self-assessment of her own risk—of both birth defects and infertility—and what she could accept in her future. She would decide whether she was willing to continue the pregnancy with the knowledge of possible damage due to rubella or whether she would have a therapeutic abortion. The authors expected different assessments based on ease of conception, but personality, faith, husbands, and other elements could also shape individual assessments. The article emphasized that the danger of maternal rubella had been exaggerated, but it adhered to the medical consensus of giving the pregnant woman information and letting her make decisions about therapeutic abortion for rubella in the context of her personal, reproductive, and family life. The JAMA article was apropos to Mrs. Gleitman's experience in 1959, but the doctors at Margaret Hague Hospital did not follow the advised protocol in this JAMA article that analyzed neighboring New York City.	31
Other medical commentators emphasized that therapeutic abortions should not be performed. The Medical Journal of Australia, for instance, argued that the most important finding in recent research in Dublin, Ireland was "the fact that even among those women who developed rubella in the first trimester, seven out of ten had perfectly normal babies" and that research showed that German measles "was a rare cause of congenital defect." Revealing a divide among Australian physicians, the editorial emphasized uncertainty about the likelihood of birth defects and that the majority of babies were normal.⁶²	32
The numbers could be presented differently, however. The original researchers in Dublin reported "that 30 percent of the women who actually had the disease during the first trimester gave birth to abnormal children."⁶³ To grasp the risk involved, one needs to know what the likelihood of congenital malformations was in normal pregnancies. The Dublin researchers had previously studied that question and found that 1.6 percent of the babies were "abnormal." Clearly, if an expectant mother had German measles in early pregnancy, the odds of malformation were much, much higher than usual.⁶⁴	33
Dr. Cosgrove also mentioned outcomes to the Gleitmans that may have seemed fixable to them—cataracts and heart problems could both be repaired through surgery. If he or his colleagues discussed possible blindness, deafness, and mental retardation and that a baby might face all of these conditions simultaneously, these permanent conditions may have sounded stronger warning signals for Mrs. Gleitman. Intellectual impairment in particular frightened potential parents and the larger society.⁶⁵ Instead, Dr. Cosgrove and his colleagues reassured Mrs. Gleitman throughout her pregnancy.⁶⁶ According to Robert Cosgrove, he told Sandra he did not believe in doing a therapeutic abortion based on the numbers. In performing therapeutic abortions for German measles, he would be "destroying one baby that was perhaps deformed and at the same time destroying four perfectly normal babies."⁶⁷ This analysis of risk emphasized the risk of aborting an unharmed pregnancy that would become a normal baby rather than the higher than usual risk of having a child with serious (possibly fatal) congenital malformations. Dr. Cosgrove did not tell his patient that as a Catholic he opposed abortion and would not perform one.	34
Nor would he have informed her of a larger medical-cultural context that shaped his own representations and his thinking. Sandra Gleitman had happened to fall into the middle of a decades-long, religiously-inflected battle among physicians over the practice of therapeutic abortion. In fact, Dr. Robert Cosgrove, Jr.'s family and his hospital had long worked vigorously to cut the number of therapeutic abortions: in the 1940s, his father, Dr. Samuel Cosgrove, had been a leader in attacking, stigmatizing, and repressing the medical practice of therapeutic abortion.⁶⁸ Therapeutic abortions were legal and an accepted part of medicine. Samuel Cosgrove, with Dr. Patricia A. Carter, had calculated therapeutic abortion "rates" of individual hospitals by comparing the numbers of therapeutic abortions to the numbers of deliveries. They then listed and published the hospitals by name and challenged those with higher "rates" to explain why their hospitals performed more therapeutic abortions. The Margaret Hague doctors declared that therapeutic abortions should be severely limited, performed only when "the pregnancy threatens the life of the mother imminently." This proposed standard would drastically revise accepted medical practice. The doctors further stigmatized the procedure by renaming it "abortion-murder" and associating it with Communist Russia.⁶⁹ The scrutiny of hospital therapeutic abortion "rates" contributed to new pressures to restrict access to abortion. Sandra Gleitman had gone to a hospital highly committed to rejecting therapeutic abortion requests and to physicians who believed it was their duty to prevent such abortions and to make these decisions for pregnant women. Doctors at this hospital had been reassuring women and prohibiting abortions for years. As Robert Cosgrove remarked, "they just don't do abortions" in Jersey City.⁷⁰ Certainly, the hospital did not have an ethos of providing the patient with the information and letting her decide what "risk" she was willing to take, nor did they inform her of what doctors knew well, indeed the elder Dr. Cosgrove had documented the fact: if she went to a different doctor and a different hospital, she might get a different answer and a therapeutic abortion.	35
Beyond her doctors' opposition to therapeutic abortion, the patient's duty to listen to and trust her doctor's medical expertise (and goodwill) also contributed to the outcome. The inequality and paternalism of the physician-patient relationship lent itself to misrepresentations, misunderstanding, and misplaced trust. As newlyweds of only 20 and 23, Sandra and Irwin Gleitman, their attorney pointed out, "were new to marital life and young in years" and thus "relied upon the defendants more so than older, more experienced persons may have." In trusting their doctors and following their advice these good, compliant patients, were "lull[ed]" into false confidence.⁷¹ They believed their baby would not be harmed.	36
The Gleitmans and the Stewarts were not the only ones to be falsely reassured and denied therapeutic abortions. Mrs. Kent, a schoolteacher whose husband was an air force captain, knew what German measles during early pregnancy meant. She appeared on a 1969 television news show to tell her story (after these cases had gone to trial). She reported getting rubella from her students in the first two weeks of her pregnancy. She went to seven doctors during the first two and a half months of her pregnancy, but "each doctor told me not to worry.... My hands were tied." As the film showed the Kents' son lying in a crib, unresponsive and unmoving, Mrs. Kent remembered her pregnancy. "Everything I read on my own indicated that a therapeutic abortion was necessary. Each doctor told me not to worry.... I used to lay awake at night as many pregnant women do wondering about this baby.... If a child was going to be malformed, would it be better for him to be blind and be able to hear ... to be deaf?" In a dead voice she continued, "we never expected multiple problems with Kevin." Kevin was born with five "major malformations" and severely retarded. Doctors told them he would have to be institutionalized; he would "always be dependent ... [and] in diapers."⁷²	37
Even though this expectant mother knew precisely the consequences of German measles, even though she persisted in seeking the therapeutic abortion that medical textbooks and the majority of the medical profession agreed was legitimate in such a case, the power to make decisions about the course of pregnancy lay in the hands of doctors and the legalistic abortion committee system. She was not at all "entitled" to a therapeutic abortion when infected by German measles during early pregnancy.⁷³ Nor did her respectability and privileges as a married, white, schoolteacher help her find a physician who responded to her needs. Unable to end the pregnancy of her first "planned-for baby," she "lay awake at night" worrying.	38
Calculating the risk of possible danger to the expectant mother and the developing fetus was something physicians tried to do and debated. Yet, weighing those risks, mainstream medicine agreed, was preeminently the job of the mother-to-be. In the Kent, Gleitman, and Stewart cases discussed here, the doctors took away precisely what many women deeply believed to be theirs. National polls in 1962 found that over half of the public thought abortion should be legal when "the child may be deformed."⁷⁴ This was a decision that even the conservative specialty of obstetrics agreed was up to the potential parents. Williams Obstetrics in 1950 had declared therapeutic abortion "justifiable if the mother and her husband do not want to assume the obvious risks involved."⁷⁵ By the late 1960s, the majority of the medical profession, including nearly half of Catholic physicians, following the abortion rights and feminist movements, supported not only an expansion of the indications for therapeutic abortion but complete repeal of the criminal abortion laws.⁷⁶	39
The harm that German measles did during pregnancy, the harm it did to Rosalyn Stewart's body specifically, was described for judge and jury by physicians who read charts and explained diagnoses, technologies, tests, and terminology. Rosalyn Stewart was also displayed for the jury. The jury observed her through their own eyes and through the eyes and expertise of a specialist in pediatrics and in congenital rubella syndrome in particular. Rosalyn's father brought her up and handed her to the doctor. Dr. Louis Cooper held Rosalyn as he pointed out the effects of maternal rubella on her body. "I think you can see Rosalyn's left eye is much smaller than her right eye, and ... it has a dense pearly looking cataract which films her pupil and prevents her from using that eye." The other eye, he explained, was also marked by the virus. "The other thing that is striking is," he continued, "you will notice her behavior. She is interested in the lights. She is interested in keeping her head back.... Instead of talking, which you would expect for a child of this age, her sounds consist of just some noises. She has no speech." Although brain damage could not be seen, mental retardation could be seen by observing strange, developmentally inappropriate behaviors. Rosalyn was tipping back to look at the lights rather than the room or the person holding her. "She is paying attention to me as a body," the doctor remarked, "but you know,"—as the jury had itself seen—"though I am a stranger to her, she went fairly readily to me. That is to say, she didn't really distinguish between handing to her father and my picking her up.... This is, of course, not a response that a child who was intact in all spheres would have."⁷⁷ "I don't think you have to be a doctor to see," he added, that "she does not function in any sphere up to age level and that she has serious handicaps."⁷⁸	40
This display of Rosalyn must have been gripping. A little girl, almost four-years-old, sat in a doctor's lap in a courtroom as he showed her physical and mental condition to the jury.	41
I want the reader to pause here.	42
To imagine.	43
I imagine complete silence. Careful listening. Close observation. The jury saw a child whose behavior was developmentally inappropriate, who did not appear to see or hear, who wore a leg brace and a hearing aid. Through her behavior, they could "see" that she was brain damaged. Dr. Cooper further explained that Rosalyn could not communicate at all, she might eventually walk with a crutch, but never "normally," and he thought her "disabilities ... so severe," her care so demanding and "so disruptive" to the family, that he believed she should be institutionalized. Institutionalization was the standard—virtually automatic—advice to parents at the time. Her life was likely to be long. Barbara Stewart, I imagine, made sure that her daughter's hair was done well, that her clothing was clean and pressed—a well-cared-for, loved, respectable daughter. A deserving child who deserved to be treated well. A deserving black child.⁷⁹ I imagine that the jury—many parents themselves surely—felt the sadness of Rosalyn's parents and possibly the depth of anxiety, perhaps hopelessness, of parents caring for a severely disabled and intellectually impaired child. How would they manage? How would they pay to institutionalize her? Could they survive that?	44
I assume that the defense attorney disliked this scene. Yet he expressed no objections to the display of the harmed child. Only when the doctor tried to describe the institution to which many children like Rosalyn Stewart had been sent, Willowbrook State School on Staten Island, did the defense attorney object. It was the school, Dr. Cooper started to explain, that "Senator Kennedy visited and was appalled by." The Court sustained the defense's immediate objection and instructed the jury to "disregard that." Rosalyn lived at home, but her doctors advised institutionalization. This line of presentation suggests that the Stewarts' attorney hoped to win an award big enough to cover private care rather than forcing Rosalyn Stewart into an underfunded and appalling state institution (where she was on a waiting list). Though instructed to forget the description of Willowbrook as immaterial, jury members may well have recalled Kennedy's description of the place as a "snakepit" and the exposés and horrors of this and other institutions. In an understatement, Dr. Cooper declared that Willowbrook did not provide "optimum" care.⁸⁰	45
The body of the impaired child was evidence. She herself, her body, her behavior, her lack of emotional reaction to the stranger were all exhibited. Her body was emotionally evocative. Rosalyn was Exhibit A, although she did not appear on the list of exhibits. The official exhibit list included the notes of Dr. Cooper, hospital records, and letters from Dr. Domsky and the public health department.⁸¹ Rosalyn did not testify, but she may have provided some of the most powerful evidence. Rosalyn's parents were prevented from expressing verbally their emotions. Through Rosalyn's body, the Stewarts' attorney invited the jury to feel and imagine parental and child emotions. The use of the person herself may offend—perhaps the child was exploited by her lawyer or by her parents. The display of the disabled child inevitably called upon both voyeuristic "freak shows" and the pity induced by March of Dimes "poster children" and Jerry Lewis's telethons for muscular dystrophy.⁸²	46
This conscious display of the disabled body in court violated the rules of politeness that taught people to avoid looking at the retarded and disabled by insisting that the jury look. The courtroom was a public space in which the rules of politeness and privacy were broken. Like science and like the freak show, the jury and the courtroom were invited and required to look and to stare. Rosalyn's body served as evidence; she was a specimen. Displaying the person and body parts in the courtroom was not unusual, however. Courts required criminal suspects to show their bodies, the size of their feet, to submit to blood tests; individuals seeking damages for injuries done brought their bodies and their injuries to the stand, along with medical records, x-rays, and medical testimony.⁸³	47
The trial, which began with Dr. Cooper's testimony about the impact of maternal rubella and the display of Rosalyn Stewart, ended two weeks later after covering much medical ground concerning diagnosis, rashes, doctors, and abortion committees.⁸⁴ The jury listened to the attorneys' closing arguments. The defense focused on abortion; the Stewarts' attorney focused on the information not given to Mrs. Stewart and the results for Rosalyn and her family.	48
"The plain truth of the matter," declared the hospital's attorney, James Hayes, "is my client has been condemned for allowing a child to live. That is the issue here. For allowing a child to live at a time, namely June of 1964, when she was only an embryo, a fetus, ... we did not destroy the child." Grutman objected to the term "child." "Call it what you will," Mr. Hayes continued, "she now lives, and there was life in June of 1964, and we were asked to do away with that life, and I say that the charge in that regard is horrendous."⁸⁵ In calling the request, the expectation of abortion "horrendous," the defense relied upon the shame and illegality of abortion, the word itself, to provoke horror in the jury.	49
In equating abortion with infanticide, the defense used a traditional anti-abortion tactic. He referred to abortion as "death" and personified the fetus who "wants" "life." When doctors "make a decision of this magnitude, they are in effect playing God. They are determining life and death over a potential human being." Should that decision be made, he asked, "in favor of the mother who wants the abortion because of her fears, or do you resolve it in favor of the child who wants life?" Association with abortion, the defense attorney implied, was in itself suspicious. The Stewart's attorney and several witnesses, the defense attorney pointed out repeatedly, were members of the Association for the Study of Abortion (ASA). Dr. Hall, said Hayes, had "avowedly admittedly associated himself with abortion for some twenty years."⁸⁶ (By the time of this trial, it should be noted, the medically oriented ASA was relatively conservative in its fight for abortion law reform rather than fighting for repeal of the criminal abortion laws.)⁸⁷ Hall talked about abortion and thus, the defense suggested, he was suspect; to support abortion was to advocate "death" of the fetus who "wanted life" in the view of the defense.	50
The defense attorney sympathized with the Stewarts' plight and avoided directly attacking any plan they might have had for abortion. A direct attack on the parents' morality might backfire. Instead, he suggested that any doctor who would carry out an abortion in such a case would be a "callous human being ... a callous doctor.... [not] a good human being." That judgment of callousness versus goodness and decency could be extended to expectant mothers who might seek abortions and to juries who might permit it. The doctors at Long Island College Hospital had "hope, good hope, that all would be well." In contrast to the "callous doctor," they were good doctors, good human beings. Their actions were "not negligence."⁸⁸ In the defense's final outline of the case, there was no misinformation, no failure to provide standard care to the patient. Instead, there were good doctors, good because the defendant doctors had saved Rosalyn's life.	51
"This is the last opportunity that I will have to speak to you on behalf of the child who will never speak," the Stewarts' attorney Grutman began. Both attorneys claimed to speak on behalf of Rosalyn Stewart, a child who could not express any views and whose parents were not allowed to speak on her behalf. The Stewarts' child, who "was compelled to come into life by the action and omission of this defendant was deprived of those basic fundamental human rights of life, liberty and the pursuit of happiness, which should be the birthright of any healthy human being. You all saw," the attorney reminded them, "that child when she was here, and I am sure that you will all be haunted by the recollection of that blighted and destroyed and mutilated piece of humanity.... Her brain has been damaged, and yet she lives, and her parents said to you, 'the first thing is, we love her very much.' ... But let it also be clear that in June of 1964 that person whom you saw in this courtroom was not a person.... Cells in organization, but not yet a person." He reminded them that their duty as jurors was to judge the case on facts and law, not on "any moral or theological basis."⁸⁹	52
Defense attorney Hayes avoided, Grutman charged, "the crucial issue of the advice and the direction and the alternatives and the intelligent disclosure which should have been made to Mrs. Stewart." The suit before the jury was about the physician's duty to give information to the patient. When "Dr. Gordon decided that his hospital wouldn't perform the therapeutic abortion, at the very least," the Stewarts's attorney insisted, the doctors "owed the Stewarts an explanation in specific detail. 'Madam, we are not going to do your therapeutic abortion,' for whatever reason." This was the standard expectation in the United States, he argued. "They should have told her of the risks of continuing the pregnancy ... so she could make an intelligent decision as to what she would want to do, and more than that, they owed her a direction to places where the procedures could be done, and they didn't do that." The doctors' duty was to inform the patient; their negligence lay in failing to give her a correct picture of the possible harm and failing to inform her of where she might obtain a therapeutic abortion. The Stewarts, he reminded the jury, said, "If we had been told, we would have gone."⁹⁰	53
"That pregnancy would have been replaceable," the attorney urged. "Mrs. Stewart wanted a child. This was a planned child, but they wanted ... to have a healthy child, and living as we do, gentlemen, in the last third of the 20th Century, people have a right for themselves to take advantage of the knowledge and strides which science has made in order to avoid bringing into the world a child to whom the boon of life will be no life, but the curse of perpetual and unending torture."⁹¹ These closing remarks bring out an incredible array of ideas—from the idea that a pregnancy is "replaceable" to the idea that a child like Rosalyn lived a life of "unending torture." In the middle of the baby boom, when it appeared that women easily and often got pregnant and had babies, pregnancies appeared easily achieved and "replaceable" to many. Infertility was invisible. Today, when infertility has become a booming medical business and the grief of infertile women and miscarrying mothers receives public attention, it is hard to imagine such a facile assumption.⁹² Similarly, the idea that Rosalyn was destined to a life of "unending torture" because of her body rather than seeing the ways in which the society produced discrimination against the disabled has since come under attack from the disability rights movements.⁹³ Describing the situation of the parents who cared for their daughter, the attorney was on firmer ground. He reminded the jury that the Stewarts' daughter would probably always be in diapers and would never speak. Furthermore, she needed constant attention and because she slept so little, her mother never got more than four hours of sleep every night. Their lives, he concluded, were a "continuous unremitting nightmare."⁹⁴	54
"I didn't want you to decide this case on sympathy," Grutman declared, though of course the attorney had shaped for the jury a sympathetic portrait of a respectable, married, churchgoing, hardworking family and their "mutilated" daughter. This case was not only about sorrow and grief though, but about the material consequences of the negligence of Stewart's doctors. "Don't close your eyes to the damages, the damages which are so colossal, so enormous, that they are almost incapable of being conceived at one time. When you contemplate what it means to these people in dollars and cents, which is the only civilized way by which, in our society, we can make up for wrongs which are inflicted, what it means to them for what they must suffer, and carry with them, that gets worse as the child gets older, which is disruptive of their family life, what it means to them in terms of their daily living, and most pointedly of all, what it means to that silent central victim, who is the principal figure in the tragedy before you, what it means to that unfortunate child. If right had been done," he ended, none of this suffering would "have come into existence." In his closing, Grutman pointed both to the emotional pain and to the financial expense of "tragedy" and reminded the jury not to be afraid of thinking in financial terms because money is in "our" "civilized society" the only way to rectify wrongs of this sort. The Stewarts' attorney asked the jury to award damages of $250,000 for the child and $100,000 each to Mrs. and Mr. Stewart.⁹⁵	55
"Don't close your eyes," Grutman told the jury. Look, use your eyes, see, and remember "the damages which are so colossal"—look, see, remember Rosalyn Stewart. A "tragedy."	56
The two-week trial thus ended and the jury was given the case to consider and decide. At its request, the jury listened to Mrs. Stewart's testimony again, through the stenographer's reading of the record. After discussing the case for another hour, the jury of twelve men unanimously found Long Island College Hospital negligent. When polled by the court, the jury affirmed their verdicts and answered three questions: 1. "Did a doctor in the defendant hospital tell Mrs. Stewart that she did not need a therapeutic abortion?" The twelve jurors unanimously agreed "Yes." 2. "Did a doctor ... tell Mrs. Stewart that the baby would be born normal?" The jury voted "No," with two jurors dissenting. 3. "Did a doctor in the defendant hospital tell Mrs. Stewart that she should not seek an abortion elsewhere?" The jury unanimously answered "Yes." The jury awarded damages of $100,000 to Rosalyn Stewart, $10,000 to Barbara Stewart, and $1 to Robert Stewart.⁹⁶	57
The jury understood the Stewarts. Like the Stewarts, jury members probably also knew about the dangers of German measles from the media and, like the majority of the country, they likely agreed that in such cases abortion was a decision that belonged to the expectant mother and should be legal. By the time of this trial, repeal of the criminal abortion laws was part of the national political and legal conversation, and was particularly visible in New York.⁹⁷ Furthermore, despite prohibitions and active organizing by the state's bishops against abortion, Catholic jurors participated in this unanimous decision. Five jurors and the judge, Harper's magazine reported, were Catholic.⁹⁸ The jury awarded much less than asked, but found that the child, Rosalyn, deserved damages, which would help pay for her medical care, and the mother damages for the hospital's misinformation and failure to live up to medical standards at the time. The father received a token one dollar—a way of recognizing that a wrong had been done to him, but that the damages were small or nonexistent. Perhaps the jury of twelve men recognized that the burdens of caring for her child fell most heavily upon the mother. Or perhaps they suspected that he would not be present as a father; a news report showed that the couple had separated and he was a student at Lincoln University outside Philadelphia.⁹⁹ Under the stress of stigma, grief, and social isolation associated with having a child with disabilities, along with providing for her physical needs, marriages often suffered and sometimes fell apart.¹⁰⁰ Perhaps they recognized the injury as one done to Barbara Stewart, first as a pregnant woman who was wronged by her doctors and then as a mother with gendered responsibilities to her children. A jury of women, themselves aware of the dangers of German measles and possibly sharing similar frustrations with doctors and hospitals, may have awarded more. Women were still rare on juries and automatically excused in some states, however.¹⁰¹ We cannot know how the makeup of the jury affected its decisions or how it arrived at these numbers, but we know that the jury believed Barbara Stewart and found the hospital negligent. The jury's verdict was a "landmark decision," the Stewarts' attorney declared; the hospital's attorney called it "illegal."¹⁰²	58
That was not the end of the case, however. Indeed, if the Stewart case had not been appealed, there would be no transcript and no testimony to analyze. All that would be left are the short reports in Harper's and the New York Times. The legal controversy and the appeals left a record behind, thus making possible analysis of the courtroom, the shaping of information, and the differences between the way law and media represented people and events.¹⁰³ Without the trial transcript, there would be almost no information about Barbara Stewart other than a brief version of her predicament and her "elegant" African features. Acting on the defense motion asking the court to dismiss the judgment, the presiding judge overturned the jury's finding on behalf of the infant Rosalyn and let the verdicts regarding her parents stand. Although he found the proof "questionable" himself, Justice Charles J. Beckinella found the jury "justified in finding that the hospital breached duties it owed."¹⁰⁴ Both sides appealed.	59
The Gleitmans also appealed when the presiding judge dismissed their case without it ever going to a jury. In 1967 the New Jersey Supreme Court affirmed the trial judge's decision: neither the parents nor the child could claim to have been wronged. The suit on behalf of the child, the court remarked, required the child to say that "his very life is 'wrongful.' ... If Jeffrey could have been asked as to whether his life should be snuffed out before his full term of gestation ... our felt intuition of human nature tells us he would almost surely choose life with defects as against no life at all."¹⁰⁵ Although it felt sympathy for the parents, "the sanctity of the single human life," the majority concluded, "is the decisive factor in this suit in tort."¹⁰⁶ Yet the Court was divided. One justice found himself personally divided; he joined the majority of four in disapproving the suits brought by the child and the father, but argued the mother had a case. Two others dissented.¹⁰⁷	60
The language of the opinion and the divisions on the court indicate that in the judiciary as in the medical profession religion highly influenced opinions regarding (therapeutic) abortion. The opinion's very words—pointing to the "sanctity" and "preciousness of human life" along with its use of the phrase "snuffed out" (highly charged for its association with murder)—betrayed the developing religious debate over abortion. One dissenting justice argued that the nineteenth-century state legislature had written vague laws regarding contraception and abortion because agreement was impossible when views differed depending on religious belief. "Whereas in most areas of criminal prohibition the fact of evil is evident to most people," Chief Justice C. Weintraub observed, "here there is evil or none at all depending wholly upon a spiritual supposition."¹⁰⁸ The court also disagreed on the legality of therapeutic abortion for maternal rubella, though it did not rule on the question.¹⁰⁹	61
Dissenting judges in Gleitman insisted that these suits had merit and damages could be figured. Chief Justice Weintraub dissented in part from the majority in favor of the mother. The defendants failed in "their clear duty" to tell Mrs. Gleitman of the "high incidence of abnormal birth" associated with German measles, he argued. Yet evaluating damages was difficult because, Weintraub continued, "the pain of the parents must be measured against the joy they find in him as he is." Nonetheless, her injury should be recognized, he argued, "in order to support the woman's right to choose whether to risk this misfortune." She alone had the right to decide her future and whether "to risk this misfortune." Justice Jacobs dissented entirely and challenged the court's assertion that it was impossible to assess compensatory damages in such cases. In fact, the law did this every day. "Surely a judicial system engaged daily in evaluating such matters as pain and suffering, which admittedly have 'no known dimensions, mathematical or financial,'" he argued, "should be able to evaluate the harm which proximately resulted from the breach of duty." Furthermore, although the duty breached was to Mrs. Gleitman, Jacobs continued, the entire family was harmed. "When Mrs. Gleitman told her obstetricians she had German measles (rubella), they were placed under a clear duty to tell her of its high incidence of abnormal birth. That duty was not only a moral one but a legal one," he declared. "If the duty had been discharged, Mrs. Gleitman could have been safely and lawfully aborted and have been free to conceive again and give birth to a normal child. Instead she was told ... that her child would not be affected.... While the law cannot remove the heartache or undo the harm, it can afford some reasonable measure of compensation towards alleviating the financial burdens. In declining to do so," Jacobs argued, the court "permits a wrong with serious consequential injury to go wholly unaddressed. That provides no deterrent to professional irresponsibility and is neither just nor compatible with expanding principles of liability in the field of torts." In rejecting these suits, the court allowed physicians to evade their legal duties and permitted "professional irresponsibility."¹¹⁰	62
By the time that New York state appellate courts saw the Stewart case in 1970 and 1972, state criminal abortion laws were being overturned in state and federal appellate courts and repealed in some states, including New York. Nonetheless, the New York courts followed New Jersey's earlier decision in Gleitman, deciding that neither the parents nor the child had a cause for action. New York state's highest courts overturned the awards to the parents and affirmed the trial judge's rejection of the claim on behalf of Rosalyn Stewart.¹¹¹ Although the jury in the Stewart case found itself able to make assessments about the damage done to the child and to the parents—even as it observed the love of the parents for their child—New York's Appellate Court (affirmed by the New York Court of Appeals) quoted Gleitman and declared that, "It would be virtually impossible to evaluate as compensatory damages the anguish to the parents of rearing a malformed child as against the denial to them of the benefits of parenthood."¹¹²	63
Although appellate courts rejected the very premise of these malpractice suits, that did not stop parents from bringing them against hospitals and doctors. Following Roe v. Wade (1973) and Doe v. Bolton (1973), which found state laws criminalizing abortion and requiring hospital abortion committees unconstitutional, many states permitted "wrongful birth" suits brought by the parents, including New Jersey in 1979. Few states permitted "wrongful life" suits brought by the child, and Gleitman continues to set the standard for their rejection on the "intuition" that the child "would surely choose life."¹¹³ The court relied upon "intuition," but for many pregnant women, their partners, and families their consciences told them that potential parents had the need and right to information and the ability to make decisions about their future. By the end of the twentieth century, most states accepted "wrongful birth" cases. As parents won these malpractice suits, American medicine turned to routinely advising genetic testing.¹¹⁴	64
These civil suits exposed the arbitrary nature of the medical system of therapeutic abortion in the decades before Roe and Doe. Yet as the legal process exposed, it also masked. Law and the media made information, ideas, and practices visible and invisible in a shifting process. That process of producing and erasing information in specific ways shaped knowledge. Most notably, race disappeared in the legal transcripts, but showed up in news reports. Religion—Catholicism most specifically—got brought out in the trial and appeared in some news stories, but disappeared almost completely in medicine. Medicine, with its power rooted in science and professional authority, made religion invisible even as religion contributed to shaping medical beliefs, practices, policies, and communication.	65
However hidden or denied, race and religion were of central importance in organizing access to a medical procedure. Class in this story is a bit different. It was well-known at the time that women with money and family medical connections were able to get abortions from careful physicians. Today, students of abortion often remark that middle-class (white) women could get abortions when others could not. This is sometimes said as though it was automatic, even easy. Yet only the most elite and fortunate (at times only a woman with a male medical relative on her side) could assume access to a therapeutic abortion. As we have seen, neither middle-class status nor health insurance, whiteness, education, or money guaranteed access to abortion. Here I want to repeat an earlier observation, the malpractice suits brought by the Stewarts and the Gleitmans make it plain that the medical system of providing legal therapeutic abortion was systematically arbitrary and sensitive to bias, not only the biases of class and privilege, but also those founded in race and religion.	66
These suits concerned the problem of restriction and inequity in the existing abortion system. The early abortion law reform movement worked on many fronts for reform; these suits were one tactic among many.¹¹⁵ But to read these cases as only about abortion would be to miss their full significance.	67
The suits brought by the Stewarts, the Gleitmans, and others like them have often been mistakenly treated as expressing a wish that the child had never been born. Yet the record shows that anxiety about possible birth defects and active efforts to terminate pregnancy did not mean that the parents rejected their child or loved her less once the child was born and in their family. Quite the opposite. When asked her feelings about her child's "future," Barbara Stewart told the people in the courtroom, "It is very hurtful to me because I can't really see a future that she has." She hurt "all the time."¹¹⁶ When asked if he was "disturbed" to learn of his daughter's cataracts and cardiac problems at birth, her father clarified, "I was hurt." Asked to describe "the difficulties" they faced with their second daughter, her father began, "Well, it is pretty hard to describe.... It is just that we really don't know how to do what we should, and I think that she needs a lot of attention, and she needs a lot of understanding that we don't have." Of his feelings, Rosalyn's father declared, "I think the most important thing is that we love her very much."¹¹⁷	68
The suits brought by the Stewarts and Gleitmans may also be seen as pioneering efforts on behalf of their disabled children. These suits arose with an emerging disabilities movement. While the Stewarts and Gleitmans sued for damages that would help with the medical care, training, and education of their children, parents of physically and intellectually disabled children struggled—individually and collectively—to obtain decent schooling for their children. Parent organizations for the disabled fought for equal access to schools and for state and federal funding.¹¹⁸ In suing their doctors and hospitals, these parents sought recognition of the poor treatment that they had received at the hands of their doctors and the price their children paid in suffering.¹¹⁹ They also sought a portion of the tremendous resources needed to provide for their disabled children. The concrete conditions for parents caring for a disabled child were difficult and demanding. As Barbara Stewart testified, she alone accompanied and cared for her daughter; she took her to therapy and medical appointments.¹²⁰ As the Gleitmans testified, by the age of seven, their son had had several eye operations and had been seen by "many doctors" and twenty special institutions and hospitals.¹²¹ One Los Angeles mother drove at least four hours every day to take her two-year-old daughter to sessions with physical therapists, hearing specialists, and special centers. Mothers, as the parents with primary, daily, physical responsibility for their children's care and upbringing, had much work to do. Expenses mounted as well. Someone who drove her child to multiple appointments all day long could not earn wages herself; health insurance did not cover physical therapy or hearing aids.¹²²	69
Labeling these suits "wrongful birth" and "wrongful life" cases diverts attention from the wrongs involved and forced parents then and now to proceed in the legal arena as though they would prefer that their children did not exist and to argue that their children would prefer nonexistence.¹²³ The labels are misnomers. The suits concern whether doctors have the same duty to their pregnant patients that they have in any other case: the duty to give accurate and complete information so that patients can make decisions in an informed way.¹²⁴ Indeed, these kinds of malpractice suits may be seen as one of the roots of "informed consent," a guiding principle of contemporary health care and health law.¹²⁵	70
In challenging the subtle deceptions of downplaying risk and failing to inform patients of the possibility of abortion, these malpractice suits challenged the medical profession to treat abortion like any other part of medicine and represented a pioneering effort to realign power in the physician-patient relationship. The nation's criminal abortion laws had since the nineteenth century included exceptions allowing physicians to perform abortions they determined to be necessary. The therapeutic abortion committee system was the formalized manifestation of the right and responsibility of physicians to adjudicate whether and when women could receive legal, medically legitimate, "therapeutic" abortions. In the medical system, although women had to consent to an abortion, they did not decide. These cases challenged medical power to decide and a history of medical deception of women who sought abortions. Although many physicians sympathized and helped women obtain abortions, anti-abortion physicians had long encouraged each other to prevent abortions by deceiving women by, for example, refusing to reveal the outcome of a pregnancy test. It is worth pointing out that this type of suit is predicated on the problematic assumption of consumer choice among physicians and the legal availability of abortion. Neither the individual doctor nor the larger health care system is expected to follow the patient's decision. They are required only to give accurate information and to point the patient to other physicians and hospitals who might perform an abortion, a procedure that is increasingly inaccessible in the current repressive atmosphere.	71
We need not accept the view of present-day tort reformers who regard those who bring malpractice suits as deceitful and in search of money rather than about real violations to see that these suits addressed the financial needs of the injured and the need for changes in medicine. In a society that provided meager services for the disabled, lacked a universal health care system, and relied upon private family resources—both financial and physical—to care for the disabled, civil litigation could be the only means for securing high-quality care and education for a disabled child. The parents of the severely disabled stood almost alone with inadequate funding and social support to provide medical care, social services, and special education for the child or support for the parents and family caring for the disabled child. The need for individual suits grew, in part, out of the larger society's failure to meet the needs of its disabled citizens, problems that suits alone could not solve. The commitment of the parents to the unexpected disabled child is apparent in their efforts on their behalf—in seeking medical care, educational services, and in malpractice suits brought against physicians and hospitals that failed to provide honest and accurate information about pregnancy, disease, and abortion.	72
Even though the Stewarts and Gleitmans lost their suits, these ordinary families of the working class, black and white, pioneered in advancing patient rights, reproductive rights, and disability rights. In public legal forums, they insisted that the decision to bring a child into the world and, more specifically, the decision of whether to bring a pregnancy to term with knowledge of possible health problems or to abort, was not a decision for doctors to make. This was a decision to be made by the pregnant woman, by the potential parents. The doctor's duty was to provide accurate medical information; the responsibility for making a decision about the patient's own health care and about reproduction, rested with the patient herself. In failing to give information, in downplaying the consequences of disease, in following their own religious values rather than consulting with the patient and being guided by her (or, as in these cases, the couple), doctors and hospitals, these suits charged, treated their patients negligently and failed in their duties to their patients. The malpractice for which these suits were brought should be called "wrongful information."	73
Leslie J. Reagan is Associate Professor of History, Medicine, Law, and Gender and Women's Studies at the University of Illinois, Urbana-Champaign <lreagan@illinois.edu>. For research support, the author is grateful to the University of Illinois, Urbana-Champaign Research Board and the National Institutes of Health, National Library of Medicine, Grant Number 5G13LM8407. This article's contents do not necessarily represent the official views of the NIH. The author thanks Dawn Flood, Elisa Miller, and Brian Hoffman for their research assistance. Earlier versions of this essay were presented at the National Library of Medicine and the University of Illinois College of Law. The author is grateful to her audiences and especially to Vanessa Gamble, Janet Golden, Liz Pleck, Daniel Schneider, Siobhan Somerville, and Susan Smith for their helpful comments and support. Thank you as well to David Tanenhaus and the journal's anonymous reviewers. Notes ^1.� E. M. D. Watson, "How to Have a Perfect Baby," Cosmopolitan 147 (December 1959): 75. ^2.� The 1950, 1956, and 1961 versions of Williams Obstetrics all had the same sentence. See Nicholson J. Eastman, Williams Obstetrics, 10th ed. (New York: Appleton-Century Crofts, 1950), 786; Nicholson J. Eastman and Louis M. Hellman, Williams Obstetrics, 11th ed. (New York: Appleton-Century Crofts, 1956), 786; Nicholson J. Eastman and Louis M. Hellman, Williams Obstetrics, 12th ed. (New York: Appleton-Century Crofts, 1961), 786. ^3.� N. McAlister Gregg, "Congenital Cataract Following German Measles in the Mother," Transactions of the Ophthalmological Society of Australia 3 (December 1941): 35–46; Stanley A. Plotkin, "Rubella Vaccine," in Vaccines, ed. Stanley A. Plotkin and Edward A. Mortimer, Jr., 2nd ed. (Philadelphia: W. B. Saunders Co., 1994), 303–36. ^4.� Kristin Luker, Abortion and the Politics of Motherhood (Berkeley: University of California Press, 1981), 81. ^5.�Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967); Stewart v. Long Island College Hospital, 296 N.Y.S.2d 41, 58 Misc. 2d, 432 (1968); Stewart v. Long Island College Hospital, 313 N.Y.S.2d 502, 35 A.D.2d 531 (1970); Stewart v. Long Island College Hospital, 30 NY2d 695, 283 N.E.2d (1972). ^6.�Roe v. Wade, 410 U.S. 479 (1973); Doe v. Bolton, 410 U.S. 179 (1973). ^7.� Most states now permit wrongful birth suits, though they remain subject to debate. Only three states permit wrongful life suits. These phrases are currently used in cases regarding amniocentesis and genetic testing, but have also been used in suits regarding failed contraception or sterilization. The origin of these labels is unclear. Gleitman and Stewart were not referred to as "wrongful birth" or "wrongful life" suits at the time. They appear to take off from torts for "wrongful death." Gleitman cited Tedeschi, "On Tort Liability for 'Wrongful Life,'" Israel Law Review (1966): 513, 529. "Wrongful birth" did not appear in a similar appellate case regarding rubella and abortion until Jacobs v. Theimer, 519 S.W. 2d 846, 18 Tex. Sup. J. 222 (1975). On this type of tort, see Wendy F. Hensel, "Disability Impact of Wrongful Birth and Wrongful Life Actions," Harvard Civil Rights and Civil Liberties Law Review 40.1 (Winter 2005): 141–96; Barry R. Furrow et al., Health Law, 2nd ed., vol. 2, Practitioner Treatise Series (St. Paul, Minn.: West Group, 2000), chap. 17, 361–73; Elizabeth Weil, "A Wrongful Birth?" New York Times Magazine, March 12, 2006. ^8.� I refrain from describing this as the medical "offering" of amniocentesis to pregnant women because the "offer" is often presented as an expectation or felt as a pressure. The development of the technology combined with the success of malpractice suits, hereditarian thinking, and patient demand have all coalesced to make amniocentesis routine for most American women. On these complex developments and their meaning, see Barbara Katz Rothman, The Tentative Pregnancy: How Amniocentesis Changes the Experience of Motherhood (New York: W.W. Norton and Co., 1993); Rayna Rapp, Testing Women, Testing the Fetus: The Social Impact of Amniocentesis in America (New York and London: Routledge, 1999); Marsha Saxton, "Disability Rights and Selective Abortion," in Abortion Wars: A Half-Century of Struggle, 1950–2000, ed. Rickie Solinger (Berkeley: University of California Press, 1998), chap. 18; Erik Parens and Adrienne Asch, eds., Prenatal Testing and Disability Rights (Washington, D.C.: Georgetown University Press, 2000); Susan Lindee, Moments of Truth in Genetic Medicine (Baltimore: Johns Hopkins University Press, 2005); Alexandra Minna Stern, Eugenic Nation: Faults and Frontiers of Better Breeding in Modern America (Berkeley: University of California Press, 2005). ^9.� Rapp offers a superb study of women's decision making based on scientific knowledge derived from this new technology. "Situated on a research frontier," Rapp explains, pregnant women "are forced to judge the quality of their own fetuses, making concrete and embodied decisions about the standards for entry into the human community." Rapp, Testing Women, Testing the Fetus, 3, 306–11. ^10.�Griswold v. Connecticut, 381 U.S. 479 (1965). ^11.� James C. Mohr, Doctors and the Law: Medical Jurisprudence in Nineteenth-Century America (New York: Oxford University Press, 1993); Kenneth Allen De Ville, Medical Malpractice in Nineteenth-Century America (New York: New York University Press, 1990); Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920 (Cambridge: Cambridge University Press, 2001); Leslie J. Reagan, "Victim or Accomplice?: Crime, Medical Malpractice, and the Construction of the Aborting Woman in American Case Law, 1860s-1970," Columbia Journal of Gender and Law 10.2 (2001): 311–31; Chester R. Burns, "Malpractice Suits in American Medicine before the Civil War," Bulletin of the History of Medicine 43 (January-February 1969): 41–56. See also Leslie J. Reagan, "Law and Medicine," in Cambridge History of Law in America, ed. Christopher Tomlins and Michael Grossberg (London and New York: Cambridge University Press, 2008), 3: chap. 7. ^12.� Furrow, Health Law, 363. There is a large legal literature on these types of suits. I cite some examples. On the continuing significance of Gleitman v. Cosgrove as precedent and early jurists' dismissal of these torts because of abortion, see Deana A. Pollard, "Wrongful Analysis in Wrongful Life Jurisprudence," Alabama Law Review 55 (Winter 2004): 327–75. For a discussion of the pro-life movement's use of tort against physicians who perform abortions in order to erode the legitimacy of wrongful birth cases, thus clearing the way for health-care providers to mislead women about their pregnancies, see A. J. Stone, "Consti-tortion: Tort Law as an End-Run Around Abortion Rights after Planned Parenthood v. Casey," American University Journal of Gender, Social Policy and the Law 8 (2000): 472, 514. On disabilities, see Hensel, "The Disabling Impact of Wrongful Birth and Wrongful Life Actions," 141; Jennifer R. Granchi, "The Wrongful Birth Tort: A Policy Analysis and the Right to Sue for an Inconvenient Child," South Texas Law Review 43 (Fall 2002): 1261–87 (both opposed to these types of suits); and Pilar N. Ossorio, "Prenatal Genetic Testing and the Courts," in Prenatal Testing and Disability Rights, ed. Parens and Asch, 308–33. For an argument that wrongful life suits should be permitted, treated as negligence, and are advantageous to people with disabilities, see Pollard, "Wrongful Analysis," 369–74. For historical analysis of similar suits regarding FAS, see Janet Golden, Message in a Bottle: The Making of Fetal Alcohol Syndrome (Cambridge: Harvard University Press, 2005), chap. 7. ^13.� Leslie J. Reagan, When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867–1973 (Berkeley: University of California Press, 1997); David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (New York: Macmillan, 1994); Saxton, "Disability Rights and Selective Abortion"; Linda Gordon, Woman's Body, Woman's Right: Birth Control in America, rev. and updated (New York: Penguin Books, 1999); Rosalind Pollack Petchesky, Abortion and Woman's Choice: The State, Sexuality, and Reproductive Freedom (Boston: Northeastern University Press, 1984); Luker, Abortion; James C. Mohr, Abortion in America: The Origins and Evolution of National Policy, 1800–1900 (New York: Oxford University Press, 1978). ^14.� On the field of disabilities history and postwar assumptions about people with disabilities, see Catherine J. Kudlick, "Disability History: Why We Need Another 'Other,'" American Historical Review 108.3 (June 2003): 763–93; Paul K. Longmore, Why I Burned My Book and Other Essays on Disability (Philadelphia: Temple University Press, 2003); Paul K. Longmore and Lauri Umansky, eds., The New Disability History: American Perspectives (New York: New York University Press, 2001); James W. Trent, Jr., Inventing the Feeble Mind: A History of Mental Retardation in the United States (Berkeley: University of California Press, 1994); Joseph P. Shapiro, No Pity: People with Disabilities Forging a New Civil Rights Movement (New York: Random House, 1994). ^15.� For a helpful article analyzing the assertions of tort reformers in the 1990s and 2000s and a review of the research—including studies that begin by identifying medical errors through hospital medical records and then finding how many patients complained or contacted attorneys—see David A. Hyman and Charles Silver, "Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid," Vanderbilt Law Review 59 (May 2006): 1085–136. ^16.� The Stewarts' attorney lost a similar case, as reported in Marion K. Sanders, "The Right Not to be Born," Harper's 240 (April 1970): 92. There may have been other cases that never went anywhere in the legal system nor received public attention. I do not present the two cases in chronological order because the record is thinner for the earlier case, for which I do not have a transcript. How these patients found their attorneys is unknown. Nor do I know whether the Stewarts knew of the earlier suit brought by the Gleitmans. The news coverage of Gleitman appeared after the Stewarts filed their complaint, but it seems likely that the two attorneys knew each other or of the suits. ^17.� "Worst Rash of Measles," Business Week (April 4, 1964): 98; quotation from "Spots All Over," Newsweek 73 (April 13, 1964): 90. The CDC estimated over 12,000,000 cases of rubella, 5,000 therapeutic abortions for maternal rubella, and 20,000 children born with congenital rubella syndrome as a result of the 1964–65 epidemic. See Plotkin, "Rubella Vaccine," 303, table 11–5 on 308. See also Leslie J. Reagan, Dangerous Pregnancies: Mothers, Disabilities, and Abortion in Modern America (Berkeley: University of California Press, 2009), chap. 2. ^18.� Transcript of Stewart v. Long Island College Hospital, 35 AD2d. 531 (1970), 135, 132, 138, 305–6; New York Supreme Court Appellate Division, Cases and briefs held at New York State Library, Albany, New York. Hereafter cited as Transcript of Stewart. ^19.� Transcript of Stewart, 284. ^20.� Rapp, Testing Women, Testing the Fetus. ^21.� For examples, see Goodrich C. Schauffler, M.D., "Tell Me Doctor," Ladies Home Journal 79 (March 1962), 12, 14; "The Agony of Mothers about Their Unborn," Life 58.22 (June 4, 1965), 29–31. See Reagan, Dangerous Pregnancies, chap. 2. ^22.� Transcript of Stewart, 204. ^23.� Ibid., 195; Robert E. Hall, "New York Abortion Law Survey," American Journal of Obstetrics and Gynecology (hereafter cited as AJOG) 93.8 (December 15, 1965): 1182–83. ^24.� Dr. Louis Z. Cooper in Transcript of Stewart, 8–83. ^25.� Transcript of Stewart, 149, 150, quotation on 151. ^26.� Transcript of Stewart, 298, quotation on 306. ^27.� See Plaintiffs' Exhibit 4 in ibid., 693. ^28.� The complaint was first served on March 19, 1965. Brief of Plaintiff-Appellant, Rosalyn Stewart in Rosalyn Stewart v. Long Island College Hospital, 30 NY2d 695 (1970), 1–4, quotation on 4, New York Court of Appeals Cases and Briefs, New York State Library. ^29.� Barbara Stewart in Transcript of Stewart, 156, "upset" and "irritable" on 157. See also Brief of Plaintiff-Appellant, Rosalyn Stewart, 1–4. ^30.� Reagan, When Abortion Was a Crime, chap. 6; Rickie Solinger, "A Complete Disaster': Abortion and the Politics of Hospital Abortion Committees, 1950–1970," Feminist Studies 19.2 (Summer 1993): 241–68. ^31.� Dr. Robert Gordon in Transcript of Stewart, quotation on 369, on calling Dr. Cohen at Kings, but not Dr. Domsky, 358–59. ^32.� Dr. Vincent Tricomi, Transcript of Stewart, 463, 467. Attorney Grutman's questions concerning whether some patients would be "rich enough" to have gone to a specialist for diagnosis on 474–75. ^33.� Analysis of 1950–1960 data found that therapeutic abortion rates fell after the creation of therapeutic abortion boards. Robert E. Hall, "Therapeutic Abortion, Sterilization, and Contraception," AJOG 91.4 (Feb. 15, 1965): 518–20. See also Christopher Tietze, "Therapeutic Abortions in New York City, 1943–1947," AJOG 60.1 (July 1950): 146, 147. Further analysis of New York City data for 1943–1962 showed decreasing numbers of therapeutic abortions overall and that the downward trend was greatest among Puerto Ricans and lowest among whites. Rates of (illegal) abortion-related deaths were much higher among Puerto Rican and nonwhite women. Edwin M. Gold, et al., "Therapeutic Abortions in New York City: A 20–Year Review," American Journal of Public Health 55.7 (July 1965): quotations on 966, 968–69, 971. ^34.� The staff at this hospital was willing to perform abortions for low-income women, which made it unusual. That such a large number considered and approved these cases may have been politically prudent rather than a method of restricting access. Nonetheless, a private paying patient only needed the approval of one physician. Inter-Departmental Communication from Department of Professional and Vocational Standards, Division of Investigation to Board of Medical Examiners, 19 August 1965, p. 1, folder 822, Abortion Investigative Files, 1925–1969, State Board of Medical Examiner Records, Department of Consumer Affairs, California State Archives, Sacramento, California. ^35.� Reagan, When Abortion Was a Crime, chaps. 3, 4, 6. ^36.� Leslie J. Reagan, "Engendering the Dread Disease: Women, Men, and Cancer," American Journal of Public Health 87.11 (November 1997): 1781–82; Lara Marks, Sexual Chemistry: A History of the Contraceptive Pill (New Haven: Yale University Press, 2001), 196. ^37.� Dr. Robert A. MacKenzie in discussion of Walter T. Dannreuther, "Therapeutic Abortion in a General Hospital," AJOG 52 (July 1946): 64; Reagan, When Abortion Was a Crime, 178. ^38.� Transcript of Stewart, 171, 172. See also pages 478–79. ^39.� Transcript of Stewart, 282, 155; Sanders, "The Right Not to Be Born," 92. ^40.� "Tragic Pregnancy," Good Housekeeping 162 (January 1966), 12, 15, 20, 22, 26; Reagan, Dangerous Pregnancies, chap. 2. ^41.� Transcript of Stewart, 487–504; Tietze, "Therapeutic Abortions in New York City," 147; Gold, "Therapeutic Abortions in New York City," 966. ^42.� Hall, "Therapeutic Abortion." ^43.� See Vanessa Northington Gamble, "Under the Shadow of Tuskegee: African Americans and Health Care," American Journal of Public Health 87.11 (November 1997): 1774; Elizabeth Fee, "Sin Versus Science: Venereal Disease in Twentieth-Century Baltimore," in AIDS: The Burdens of History, ed. Elizabeth Fee and Daniel M. Fox (Berkeley: University of California Press, 1988), 125–28; Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (New York: Vintage Books, 1997). ^44.� The Stewarts were represented by Norman Roy Grutman, a personal injury attorney, who became quite successful. David Margolick, "Roy Grutman is Dead at 63," New York Times (hereafter NYT) June 28, 1994. ^45.� Transcript of Stewart, 436–37. ^46.� Furthermore, this research was published in the nation's leading medical journal by New York physicians. "Rashless German Measles," Science News Letter 63.44 (February 7, 1953) reported on research by Saul Krugman et al. in JAMA (January 24, 1953). See also G. B. Avery et al., "Rubella Syndrome After Inapparent Maternal Illness," in Rubella Symposium in American Journal of Diseases of Children 110.4 (October 1965): 444–46. ^47.� Sanders, "The Right Not to Be Born," 92; Val Adams, "Hospital Loses Suit in Refusal to Perform Abortion," NYT, October 5, 1968, 32. ^48.� On intersectionality and the law's inability to see how racial and gender discrimination can operate simultaneously, see Kimberle Crenshaw, "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics," University of Chicago Legal Forum 30 (1989): 139–67; Patricia J. Williams, Alchemy of Race and Rights (Cambridge: Harvard University Press, 1992). ^49.� Sanders, "The Right Not to Be Born," 92. ^50.� Ibid., 99. The Harper's article ended with the last quotation and reported that in his appeals brief, attorney Grutman used the "elegant quotation" from N. J. Berrill's The Person in the Womb (New York: Dodd, Mead and Co., 1968). On the "jungle," see Stuart Hall, "The Spectacle of the 'Other,'" in Representation: Cultural Representations and Signifying Practices, ed. Stuart Hall (London: Sage Publications, 1997), 223–79; Jullilly Kohler-Hausman, "Militarizing the Police: Officer Jon Burge, the 'Vietnamese Treatment,' and Vigilantism in the 'Urban Jungle,'" unpublished paper, October 2007, in author's possession. ^51.�Gleitman v. Cosgrove. ^52.� 1958 controversy reported in Lawrence Lader, Politics, Power, and the Church: The Catholic Crisis and Its Challenge to American Pluralism (New York: MacMillan Publishing Co., 1987), 73–4. ^53.� Brief for Defendants-Respondents in Gleitman v. Cosgrove, Superior Court of New Jersey, Appellate Division, A-559–65 (1966), 6; New Jersey State Law Library, Law Division, Trenton, New Jersey. ^54.� Robert Gordon in Transcript of Stewart, 361. ^55.� Brief on behalf of Plaintiffs-Appellants in Gleitman v. Cosgrove, 2–4, 6, 8; New Jersey State Law Library. ^56.� Brief for Defendants-Respondents in Gleitman v. Cosgrove, 4–5. ^57.� Brief on Behalf of Plaintiffs-Appellants in Gleitman v. Cosgrove, 6. ^58.� For a summary of the international discussion, see Rolf Lundstrom, Rubella During Pregnancy: A Follow-Up Study of Children Born after an Epidemic of Rubella in Sweden, 1951, with Additional Investigations on Prophylaxis and Treatment of Maternal Rubella (Uppsala, Sweden: Appelbergy Boktryckeri, 1962), 80–83. ^59.� Morris Greenberg and Ottavio Pellitteri, "Frequency of Defects in Infants Whose Mothers had Rubella During Pregnancy," JAMA (October 12, 1957): 675. ^60.� Ibid., 678. ^61.� Ibid. On the idea of risk in medicine, see Thomas Schlich and Ulrich Trohler, eds., The Risks of Medical Innovation: Risk Perception and Assessment in Historical Context (London and New York: Routledge, 2006). ^62.� "Rubella in Pregnancy," Medical Journal of Australia II.17 (October 24, 1959): 609. ^63.� Victoria P. Coffey and W. J. E. Jessop, "Rubella and Incidence of Congenital Abnormalities," The Irish Medical Journal of Medical Science 6.397 (January 1959): 5. ^64.� Furthermore, among the women who contracted the disease in pregnancy at any point, "the incidence of congenital deformities ... was nearly 10 times the expected level." Coffey and Jessop, "Rubella and Incidence of Congenital Abnormalities," table III on 4, 5, 9, 11. Quote on p. 11. ^65.� Martin S. Pernick, The Black Stork: Eugenics and the Death of "Defective" Babies in American Medicine and Motion Pictures since 1915 (New York: Oxford University Press, 1996); Trent, Inventing the Feeble Mind. Furthermore, blindness and deafness both were often equated with mental retardation. Susan Burch, Signs of Resistance: American Deaf Cultural History, 1900 to World War II (New York and London: New York University Press, 2002), 134–37; Pauline M. Moor, "Blind Children with Developmental Problems," Children 18.1 (Jan.-Feb. 1961), 9. ^66.� Brief on behalf of Plaintiffs-Appellants in Gleitman v. Cosgrove, 2–4. ^67.� Brief for Defendants-Respondents in Gleitman v. Cosgrove, 8. ^68.� On Dr. Samuel Cosgrove and the Margaret Hague Hospital, see Reagan, When Abortion Was a Crime, 179–80. Although it was a municipal hospital, Margaret Hague Hospital's hostile Catholic-based stance toward abortion continued after Roe v. Wade. See Lader, Politics, Power, and the Church, 75. On the Catholic Church's interventions in medical practice around birth control, see Garrow, Liberty and Sexuality, chapters 1–2; on Catholic and Protestant views in the early twentieth century, see David M. Kennedy, Birth Control in America: The Career of Margaret Sanger (New Haven, Conn.: Yale University Press, 1970), 144–71. ^69.� S.A. Cosgrove and Patricia A. Carter, "A Consideration of Therapeutic Abortion," AJOG 48 (September 1944): 299–305. First quote on 304, "abortion-murder" on 305, Russians on 308–9, table comparing abortion rates on 305. Emphasis in original. See Reagan, When Abortion Was a Crime, 173–81. ^70.� Cosgrove and Carter boasted that Margaret Hague had the lowest therapeutic abortion to delivery ratio, 1:16,750 and Hopkins the highest with a ratio of 1 therapeutic abortion to 35 deliveries. Cosgrove and Carter, "A Consideration of Therapeutic Abortion," Table I, p. 305. S. A. Cosgrove reported that in the eleven years after that article "no abortion has been performed in the hospital which I until recently directed," in "Therapeutic Abortion," Journal of the Michigan State Medical Society 55 (July 1956): 798. In response to Robert Cosgrove's remark, the Gleitmans' attorney pointed out that therapeutic abortions were done in New Jersey, they were legal, and Jersey City was in New Jersey. The doctors had a duty to inform their patient of the consequences of German measles during pregnancy and to alert her to the possibility of therapeutic abortion at other hospitals. Brief on Behalf of Plaintiffs-Appellants in Gleitman v. Cosgrove, R. Cosgrove quote on 18, argument concerning the duty of physicians to inform their patients on 10–14. ^71.� Brief on Behalf of Plaintiffs-Appellants in Gleitman v. Cosgrove, 11, 4. ^72.� Mrs. Kent in Abortion, ABC News, June 5, 1969, print at Wisconsin State Historical Society, Madison, Wisconsin. ^73.� Watson, "How to Have a Perfect Baby," 75. ^74.� In 1962, 55.13% believed abortion should be legal in this case; by 1969, 62.32% believed it should be legal. Gallup Brain, online data base, Gallup Organization. ^75.�Williams Obstetrics, 786. ^76.� A 1967 nation-wide survey of 40,000 physicians found that 49.1% of Catholic doctors and 93.3% of non-Catholic doctors supported liberalizing the abortion law. By 1969, 64% of Americans, and 60% of Catholics agreed that abortion was not a decision for the law to make. April 1967 report in Modern Medicine cited in Phil Kerby, "Abortion: Laws and Attitudes," The Nation 204 (June 12, 1967): 755; Lucinda Cisler, "Unfinished Business: Birth Control and Women's Liberation," in Sisterhood is Powerful: An Anthology of Writings from the Women's Liberation Movement, ed. Robin Morgan (New York: Vintage Books, 1970), 310–11; "Changing Morality: The Two Americas, A Time-Louis Harris Poll," Time 93 (June 6, 1969): 27; Petchesky, Abortion and Woman's Choice, chap. 3. ^77.� Transcript of Stewart, 99–100. ^78.� Ibid., 101. ^79.� I deliberately mention race here because who was considered deserving—as children, mothers, and citizens—was structured by race. Respectability and a person deserving respect were attributes also read through demeanor, dress, hairstyle, and cleanliness, all gendered, all classed, and all the responsibility of a mother to her daughter. At the moment of this case, African-Americans vocally demanded equal rights as citizens and the welfare rights movement made demands for poor mothers of color, especially black single mothers. See Felicia Kornbluh, The Battle for Welfare Rights: Politics and Poverty in Modern America (Philadelphia: University of Pennsylvania Press, 2007); Rickie Solinger, Beggars and Choosers: How the Politics of Choice Shapes Adoption, Abortion, and Welfare in the United States (New York: Hill and Wang, 2001), chap. 5. ^80.� Dr. Louis Z. Cooper testimony and presentation of Rosalyn Stewart in Transcript of Stewart, 99–110, quotations on 107, 108–9. Trent, Inventing the Feeble Mind, 254–55. Report of Stewart on a waiting list in Sanders, "The Right Not to be Born," 94; Robert F. Kennedy toured Willowbrook in 1965. See Geraldo Rivera, Willowbrook: a report on how it is and why it doesn't have to be that way (New York: Random House, 1972); Museum of DisABILITY History, media timeline, <www.museumofdisability.org> (accessed July 25, 2007); "A Push to Preserve Willowbrook's Legacy," Staten Island Advance, March 19, 2006; Sheila M. Rothman and David Rothman, The Willowbrook Wars: Bringing the Mentally Disabled Into the Community (Edison, N.J.: Aldine Transaction, 2005). ^81.� For Exhibits, see Transcript of Stewart, iv, 587–710. ^82.� On looking at the disabled, see Rosemarie Garland Thomson, "Seeing the Disabled: Visual Rhetorics of Disability in Popular Photography," in The New Disability History, ed. Longmore and Umansky, 335–75; Rachel Adams, Sideshow U.S.A.: Freaks and the American Cultural Imagination (Chicago: University of Chicago Press, 2001); Shapiro, No Pity, 20–23. ^83.� Although there are far too many cases to cite here, there are many concerning blood tests, urine tests, and physical examinations. See Fred E. Inbau, "Self-Incrimination—What Can an Accused Person Be Compelled to Do? Journal of the American Institute of Criminal Law and Criminology 2.3 (1937–1938): 261–92; Mason Ladd and Robert B. Gibson, "Legal-Medical Aspects of Blood Tests to Determine Intoxication," Virginia Law Review 29.6 (April 1943): 749–70. See also Alan Hyde, Bodies of Law (Princeton, N.J.: Princeton University Press, 1997). ^84.� The case began on September 28, 1968, and the jury reached its verdict on October 4, 1968. ^85.� Transcript of Stewart, 514, 515. ^86.� Ibid., 518, 520, 523, and see 525, 528. ^87.� Garrow, Liberty and Sexuality, 379. ^88.� Transcript of Stewart, 530. ^89.� Ibid., 533–34. ^90.� Ibid., 547–48. ^91.� Ibid., 544. ^92.� See Margaret Marsh and Wanda Ronner, The Empty Cradle: Infertility in America from Colonial Times to the Present (Baltimore: Johns Hopkins University Press, 1996) and Elaine Tyler May, Barren in the Promised Land: Childless Americans and the Pursuit of Happiness (New York: Basic Books, 1995); Linda Layne, Motherhood Lost: A Feminist Account of Pregnancy Loss in America (New York: Routledge, 2002); Leslie J. Reagan, "From Hazard to Blessing to Tragedy: Representations of Miscarriage in Twentieth-Century America," Feminist Studies 29.2 (Summer 2003): 356–78. ^93.� Shapiro, No Pity. ^94.� Transcript of Stewart, 535, 533, 548, 538. ^95.� Ibid., 550–51. ^96.� Ibid., 579–84. The jury met for almost three hours. Ibid., 551; Adams, "Hospital Loses Suit." ^97.� New York repealed its criminal abortion law in 1970. On polls, the political progress of reform and repeal in New York and nationally in this period, see "Changing Morality"; Petchesky, Abortion and Woman's Choice, chap. 3; Garrow, Liberty and Sexuality, chap. 6–7; Jennifer Nelson, Women of Color and the Reproductive Rights Movement (New York: New York University Press, 2003). ^98.� This report, like so many others, mentioned Catholics, assumed opposition to abortion, and did not name the religious affiliations of the other jurors or attorneys. Sanders, "A Right Not To Be Born," 92. ^99.� Adams, "Hospital Loses Suit." ^100.� Robert Stewart agreed his marriage relationship had been hurt. Transcript of Stewart, 303. See also Stella Chess, Sam. J. Korn, and Paulina B. Fernandez, Psychiatric Disorders of Children With Congenital Rubella (New York: Brunner/Mazel; London: Butterworths, 1971), 136–37; Rayna Rapp and Faye Ginsburg, "Enabling Disability: Rewriting Kinship, Reimagining Citizenship," Public Culture 13.3 (2001): 542. ^101.� Gretchen Ritter, "Jury Service and Women's Citizenship before and after the Nineteenth Amendment," Law and History Review 20.3 (Fall 2002), 479–516. ^102.� Adams, "Hospital Loses Suit." ^103.�Stewart v. Long Island College Hospital, (1970); Stewart v. Long Island College Hospital, (1972). ^104.� First quotation from Transcript of Stewart, 37; second quote from Stewart v. Long Island College Hospital, (1968), 42. ^105.�Gleitman v. Cosgrove, 692, 693. ^106.� Opinion delivered by J. Proctor, Gleitman v. Cosgrove, 693. ^107.� Judgment of the trial court dismissing the three counts of the complaint affirmed by Justices Francis, Proctor, Hall, and Haneman (4). For reversal in part, Chief Justice Weintraub (1); For reversal: Justices Jacobs and Schettino (2). Gleitman v. Cosgrove, 694. ^108.� Justice C. Weintraub dissenting opinion on "spiritual supposition" in Gleitman v. Cosgrove, 709. ^109.� On the debate within the court about the legality of abortion in a case like Gleitman's, see Gleitman v. Cosgrove, 701–7. ^110.�Gleitman v. Cosgrove, Weintraub on 711–12; Jacobs on 703–4. ^111.�Stewart v. Long Island College Hospital, (1970); Stewart v. Long Island College Hospital, (1972). ^112.�Stewart v. Long Island College Hospital, (1970), quotation on 503–4, citing Gleitman. ^113.� California, New Jersey, and Washington permit wrongful life cases. See Mark Strasser, "Yes, Virginia, There Can Be Wrongful Life: On Consistency, Public Policy, and the Birth-Related Torts," The Georgetown Journal of Gender and the Law 4 (Summer 2003): 821; Pollard, "Wrongful Analysis," 327. ^114.�Dumber v. St. Michael's Hospital, 60 Wis.2d 766, 233 N.W.2d 372 (1975); Berman v. Allan, 80 NJ 421, 404 A.2d. 8 (1979); Procanik v. Cillo, 97 NJ 339, 478 A.2d. 755 (1984); Furrow, Health Law, 361–2; Rapp, Testing Women, Testing the Fetus, 40–41. ^115.� On abortion law reform and repeal movements, see Garrow, Liberty and Sexuality; Luker, Abortion; Petchesky, Abortion and Woman's Choice, chap. 3; Laura Kaplan, The Story of Jane: The Legendary Underground Feminist Abortion Service (New York: Pantheon Books, 1995); Leslie J. Reagan, "Crossing the Border for Abortions: California Activists, Mexican Clinics, and the Creation of a Feminist Health Agency in the 1960s," Feminist Studies 26.2 (summer 2000): 323–48; Reagan, When Abortion Was a Crime. ^116.� Transcript of Stewart, quotations on 157. ^117.� Ibid., quotations on 300, 303, 304. ^118.� Richard K. Scotch, From Good Will to Civil Rights: Transforming Federal Disability Policy (Philadelphia: Temple University Press, 1984); Trent, Inventing the Feeble Mind, 238–43; Shapiro, No Pity, 144–45, 165–75. For examples of parents' efforts to educate children who were deaf due to German measles, see, "The Parents Talk It Over," Volta Review (hereafter VR) 63.7 (Sept. 1961): 346–47; "The Parents Talk It Over," VR 63.4 (April 1961): 192–97; "Problem of Deaf Children Discussed Through Roundabout Correspondence Group," VR 71.4 (April 1969): 241–42. ^119.� Many at the time—and many still—equated blindness, deafness, retardation, and disability with suffering, assumptions that need to be challenged. The disability rights movements that have arisen since the time of these cases have helped people to rethink those assumptions and to see that society—not the body—creates disability and suffering. Disability is a social problem more than or not only a biological or medical problem. In my use of the term "suffering," I am thinking of the numerous tests, surgeries, and therapies that some children born with rubella syndrome endured. ^120.� Transcript of Stewart, 155–57. ^121.� Brief on behalf of plaintiffs-appellants, Gleitman v. Cosgrove, by Leon A. Consales, (May 2, 1966), 3. ^122.� Lynn Lilliston, "The Rubella Children—A Sad Picture Edged with Hope," Los Angeles Times, February 11, 1968, K1, 20. On parental responsibilities and "the impact" of rubella children on families, see Chess, Korn, and Fernandez, Psychiatric Disorders of Children With Congenital Rubella, chap. 11, 151–52. ^123.� The attorneys' remarks and briefs, however, conveyed their (widely shared) view that the children born with birth defects as a result of maternal rubella were themselves "tragedies" and their lives destined to be tragic and miserable. Brief on Behalf of Plaintiffs-Appellants in Gleitman v. Cosgrove, 22; Transcript of Stewart, 44–45, 55, 533. ^124.� Leon A. Consales argued that "the issue here is akin to what is known as 'informed consent.'" He cited Salgo v. Leland Stanford Jr. University Bd. of Trust., 154 Cal. App.2d 560, 317 P.2d 170, 181 (Dist. Ct. App. Cal. 1953) and Louis J. Regan, The Doctor and Patient and the Law, 2nd ed. (1949) in Brief on Behalf of Plaintiffs-Appellants, Gleitman v. Cosgrove, 10–14. ^125.� On informed consent, see John Harkness, Susan E. Lederer, and Daniel Wickler, "Public Health Classics: Laying Ethical Foundations for Research," Bulletin of the World Health Organization 79.4 (2001): 365–66 and Henry K. Beecher, "Ethics and Clinical Research," New England Journal of Medicine 274.24 (June 6, 1966): 1354–60, reprinted in ibid., 367–72; David J. Rothman, Strangers at the Bedside: A History of How Law and Bioethics Transformed Medical Decision Making (New York: Basic Books, 1991); Jonathan D. Moreno and Susan E. Lederer, "Revising the History of Cold War Research Ethics," Kennedy Institute of Ethics Journal 6.3 (1996): 223–37.

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Rashes, Rights, and Wrongs in the Hospital and in the Courtroom: German Measles, Abortion, and Malpractice before Roe and Doe

LESLIE J. REAGAN

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