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The State of Aloha

In addition to citing a witchfinder general — an odious government official who tortured women accused of witchcraft in the 17th century — Justice Samuel Alito, in his leaked draft opinion of Dodds v. Jackson Women’s Health Organization, cited a very old statute much closer to home:

“Whoever maliciously, without lawful justification, administered, or causes or procures to be administered any poison or noxious thing on a women then with child, in order to produce her miscarriage, or maliciously uses any instrument or other means with like intent, shall, if such woman be then quick with child, be punished by fine not exceeding one thousand dollars and imprisonment at hard labor not more than five years.”

He cited it to show that in nearly every state (or future state) at some point in the past criminalized abortion. He’s right. Abortion first became a crime in 1850 during the reign of Kamehameha III and it remained unlawful after the overthrow and the annexation. It even survived the first decade of statehood.

The law was enforced too. The few cases that percolated up to the territorial supreme court are sparse on the facts — as it was the style in those days — and terrible.

Misao Beppu went to Honolulu from Maui and stayed at an unnamed hotel. She was pregnant. She met with Harry Hart and Edith Parker for an abortion. In that hotel, with what the court described as “crude instruments,” Hart performed the abortion. Beppu and her unborn child died. In the end, Hart and Parker were prosecuted for not only the abortion, but manslaughter. The court upheld their convictions in 1940.

A few years later, Honolulu police raided a doctor’s office and seized records, medical instruments and a book as proof that Dr. Peter Young performed an abortion and accidentally killed the unnamed mother. That conviction was upheld too.

Then there are the bodies of women who desperately tried to end their pregnancies and ended up killing themselves. Seventy years ago, Clara Kapana tried to terminate her pregnancy. Air was trapped in her bloodstream. She was 18. Waikiki’s Patricial Steele, a known socialite around town, died the same month. Her body was found lodged between two garages. A year later, in 1953, another teenager (this time a 17-year-old from Kaneohe) died within 20 minutes of her attempt to terminate her pregnancy. Justice Alito didn’t cite these deaths or these cases.

After more than a century, and not long after statehood, attitudes changed in the islands. Too many girls and women were dying. Legislators like Vince Yano and Maui’s Nadao Yoshinaga championed bills decriminalizing abortion and creating a safe procedure for women. While labor unions and the Protestant Church supported the measure, it was met with some opposition by the Catholic Church.

Testimony for the law showed that criminalizing abortions discriminated against the poor. Abortion was safe and available for families who could afford to send their daughters, wives and girlfriends to Japan, where it was legal and performed by doctors in medical facilities. If you couldn’t afford that, families had to bear the cost of childbirth or take deadly risks with amateur abortionists.

Mari Matsuda, a law professor from Honolulu, summarized it best on Twitter this month:

“I remember Hawai’i without legal abortion. Rich girls went to Japan ‘on vacation’ when they ‘got in trouble.’ Poor girls went to back doors in Chinatown, where some bled to death and got septicemia.”

When the bill landed on Gov. John Burns’ desk, he hesitated. The governor was a devout Catholic who attended Mass every day. He firmly believed in the sanctity of all life. In the end, Burns did not veto the bill. It passed without his signature. It was the will of the people and his personal faith would not stand in the way.

With that, Hawai’i became the first state in the union to decriminalize and legalize abortion in 1970 — three years ahead of the Supreme Court’s landmark decision of Roe v. Wade. Justice Alito never mentioned that in his opinion.

More than 50 years later, the Supreme Court is poised to overturn Roe and once again leave it to the state Legislatures to determine if women have the right to safely terminate a pregnancy. Many states are just as ready to answer the question with a resounding “no.”

The result is a patchwork of states that legalize abortion and those which are ready to criminalize it again. Dead women and girls, police raids on doctors and economic discrimination are surely going to return to these jurisdictions. But not in Hawai’i. Our leaders and lawmakers are not going to change the course that was set in 1970. We will still be ahead of the Supreme Court on this one, which isn’t in Justice Alito’s opinion either.

* Ben Lowenthal is a trial and appellate lawyer, currently with the Office of the Public Defender, who grew up on Maui. His email is 808stateofaloha@gmail.com.

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