1915 Wisconsin Case Could Be Key to Abortion Pill Battle

Over the final 20 years of the Roe v. Wade era, while protestors picketed clinics, medication abortion quietly grew to more than half of all procedures, getting mailed to patients, and administered in the privacy of the home.

Mifepristone, a single-dose oral medication used for early-term abortions, was approved for use by the FDA in 2000. Yet on April 7, Trump appointee Judge Matthew Kacsmaryk of Texas ruled the agency erred when it did so and stayed the effective date — over two decades since that date had passed. Also on April 7, an Obama appointee in Washington state, Judge Thomas Rice, ruled that the drug was legal in 18 states. Wisconsin Attorney General Josh Kaul joined 22 other states and the District of Columbia requesting a stay on the Texas decision on April 10, arguing “the district court’s ruling was legally erroneous, undermines the regulatory scheme for drug approvals, and presents devastating risks to millions of people across the country.”

The dueling rulings of Kacsmaryk and Rice virtually assure a hearing before the U.S. Supreme Court, which issued the requested stay on April 21.

A 1915 Milwaukee Case Cited in Ruling

Kacsmaryk cited Bours v. United States, a 1915 case originating in Milwaukee. Dr. T. Robinson Bours was among over 100 physicians and midwives arrested in a nationwide Federal anti-abortion sweep orchestrated by Taft administration Postmaster General Frank Harris Hitchcock and described at the time as “the most extensive and far reaching ever made by any department of the government.”

In 1912 Bours advertised his practice in the newspaper, claiming “WOMEN’S DISEASES a specialty.” At the time abortion was illegal in the United States, and so was any use of the United States mails to facilitate what was called “race suicide.” He received a letter alleged to have been sent by Mrs. Charles C. Wilson of Sparta, whose daughter was “in a family way” by a “man who took advantage of her innocence” … and “now the hound has deserted her. We are willing to make any sacrifice to preserve her good name and reputation. Will you take the girl and relieve her disgrace so she can once more face the world?”

The doctor replied by mail that he could undertake a procedure for between $50 and $100. He was convicted and sentenced to two years in Federal Prison. The sentence was stayed, and Bours later won on appeal.

Until the overthrow of Roe v. Wade, this case, like Wisconsin’s 1849 abortion ban, was largely forgotten, and legally moot. But Kacsmaryk made it a key to his decision:

Plaintiffs are within the zone of interests of the Comstock Act. This statute ‘indicates a national policy of discountenancing abortion as inimical to the national life.’ Bours v. United States, 229 F. 960, 964 (7th Cir. 1915) … (the ‘thrust’ of the Comstock Act was ‘to prevent the mails from being used to corrupt the public morals’).

Milwaukee-born Manhattan Lawyer Takes Up the Case

In late April I received an email from Schuyler Frautschi a Milwaukee-born lawyer based in Manhattan, and one of the few attorneys anywhere who had ever heard of Thomas Robinson Bours and his court case before Kacsmaryk revived it:

I read the old Bours appeal back in 2020 (See https://cite.case.law/f/229/960/). So I was gobsmacked to see it featured in Judge Matthew Kacsmaryk’s preliminary nationwide injunction (issued in Texas). His discussion of it is gobbledy-gook.

So, why did he happen to read the Bours appeal back in 2020?

Frautschi grew up in the prominent E. Newberry Avenue home built for Bours in 1921 by architect Russell Barr Williamson. It is still occupied by Schuyler’s mother Pam Frautschi, and I featured it in a 2014 Urban Milwaukee story, along with a mention of Bours and his legal problems, never thinking they would re-enter contemporary jurisprudence. Neither did Frautschi:

… on April 7, I read the story in the New York Times about Judge Kacsmaryk in Texas invalidating the FDA’s mifepristone approval in 2000, and as I often do I clicked through the opinion itself. (Since I’ve worked both in the fields of public health and the law, I like to get into the nitty-gritty of the opinions themselves.) Kacsmaryk refers 3 times to the ancient Bours decision, the first on p. 18: “Likewise, Plaintiffs are within the zone of interests of the Comstock Act. This statute indicates “a national policy of discountenancing abortion as inimical to the national life.” And I immediately thought to myself, “Wait a minute, that’s not what I remember that case standing for!” … I’d just read the case in 2020. And truth be told, I read the case because of you. I’d returned (online) to your 2014 story about my Mom’s home because I was chasing down what leads I could about a dining room set originally from that house, and attributed to Milwaukee interior designer George Mann Niedecken. … Your story was one of many I scoured looking for details on the house. Since you recounted some parts of Dr. Bours’ legal troubles, I went looking for the case. It was not hard to find online. I remember having to read the case several times, because the writing is difficult to parse.

“Nonetheless, I was immediately struck by Judge Kacsmaryk’s take-away about Bours, because that is not what I remembered from the case at all. But in 2020, I would have had no reason to think twice about “a national policy of discountenancing abortion as inimical to the national life,” because Roe, not Dobbs, was the law of the land. By the same token, I’m pretty sure the Dobbs Court did not see this mifepristone case coming.”

Frautschi says the Texas judge “cherry-picked dicta from the 1915 Bours decision about the ‘national policy.'” He notes a lack of distinction between “abortion” and “illegal abortion” in the decision and says that ambiguity must be resolved, as the issue “was never put through the crucible of the sort of adversarial briefing or argument on which courts typically rely to make those sorts of findings.” He adds:

This is part of what they’ll be fighting about all the way up to the Supreme Court.

Article Part Milwaukee History, Part Legal Treatise

Fired up by the Texas court’s ruling, and with his personal connection to Bours, Frautschi compiled a 2,000-word article on the doctor and his home on Newberry Boulevard which is available as PDF. The story is fully annotated and replete with legal citations. It also offers a very detailed history of T. Robinson Bours, MD, along with many illustrations. Fans of Milwaukee history will find much of interest, and those who closely follow the law will have plenty of material to ponder.

Frautschi outlines the court proceedings, replete with more objections than you’d hear in an entire season of a television courtroom drama. Jurors were even treated to a luncheon (with wine!) in the home of the doctor during that Prohibition era. It is a remarkable tale.

“I’m most interested in helping in whatever little way I might the poor lawyers at the FDA, who have been facing a grueling schedule, and a very uphill battle down in the 5th Circuit. I’d feel bad just standing by watching a religious phalanx attack the administrative state in an area in which I happened to be weirdly well placed to have a sightline. ”

“Assuming the 5th Circuit does not do a complete about-face,” he added, “I suspect exegesis of Bours v. United States will end up in front of the U.S. Supreme Court again, and if so, Milwaukeans’ interest in Bours might be piqued.”