Silenced Voices and Gendered Justice: America’s History of Dying Declarations

In the context of contemporary debates over health policy, it is important to evaluate the role of identity in healthcare. In the hopes of investigating the implications of the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Organization (2022), I address three court cases dealing with the inclusion of female dying declarations in 20th-century criminal abortion cases. In this context, the term ‘dying declaration’ refers to testimony taken from individuals on their deathbeds to be used in the prosecution of their murderers. I also examine a fourth case in which a woman’s dying declaration is excluded from evidence despite the case being a homicide because the declaration did not meet specific criteria. In all of these cases (Seifert v. State, State v. Long, State v. Keller, and Winfrey v. State), state Supreme Courts found that the declarations of women on their deathbeds were inadmissible. 

Written dying declarations had been ruled admissible in the case of abortion if absolutely necessary in Montgomery v. State, but Seifert sought to reexamine the issue. In Seifert v. State (1903), the appellant was charged with conducting an abortion, which was illegal at the time, resulting in his patient’s death. In Seifert, the Court asked whether dying declarations could be used to prove “corpus delicti,” otherwise known as sufficient evidence of the crime. In Seifert, the Court overturned Montgomery v. State and ruled the dying declaration of the woman to be inadmissible. In the eyes of the Court, words taken from the deathbed of the woman were not enough to prove her physician’s guilt. Seifert has since been cited as eroding patient protections against criminal medical treatment. 

One cannot isolate gender from the case decision in Seifert. Would the victim’s testimony have been admitted if she was a man, or if her death was not caused by an illegal abortion? It is impossible to directly answer this question, but investigating the justifications of other Progressive-era rulings further clarifies the gendered context of Seifert.

In State v. Keller (1921), the Court found that a conviction of criminal abortion could not be based exclusively on the dying declaration of the woman. Instead, there had to be evidence that the woman was pregnant at the time of her operation to corroborate her dying declaration. State v. Keller overturned the St. Louis City Circuit Court’s conviction and discharged the defendant. It was not enough that the woman implicated her physician; instead, there had to be an impartial third party to support a conviction. 

In 1925, the appellant Gordon Winfrey was convicted of conducting a criminal abortion and sentenced to one year in prison and a fine of $10. In Winfrey v. State (1927), the Supreme Court of Arkansas reversed the prior decision and established that dying declarations were “never admissible except in homicide cases” under specific circumstances. The Court agreed that dying declarations had been admitted in criminal abortion cases in other states, but decided that there was no statute to support this in Arkansas except in homicide cases. Although the victim, Eithel Volentine, testified that she was dying because of Dr. Winfrey’s failed abortion, the case did not meet the specific circumstances necessary for the Court to admit Volentine’s dying declaration. 

The murder case State v. Long (1931) does not involve criminal abortion, but the Court’s decision is reminiscent of the broader pattern of excluding female testimony. In State v. Long, the Court overturned a prior murder conviction by rejecting Myrtle Long’s dying declaration. Ms. Long delivered her dying declaration on January 14, 1930, with the knowledge of her imminent death. In the graphic declaration, Ms. Long claimed that Harry, her jealous husband, leapt on her and shot her in a fit of rage. In the original trial, the jury was informed that dying declarations could only be accepted with the knowledge that the defendant did not have the opportunity to cross-examine the witness. Even with knowledge of this caveat, the jury convicted Long’s husband of murder. Speaking for the Court, Judge Dunbar generally felt that impending death made dying declarations admissible. However, during State v. Long, the Court questioned whether Ms. Long’s declaration was admissible as it included facts not immediately connected to her murder. The Court alleged that the testimony should be discarded as the “victim may [have been] fired by a spirit of revenge” or may have wanted her “innocent children” to believe they had a “virtuous mother.” Therefore, the original murder conviction was overturned and a third trial was ordered where Long’s testimony could not be used as evidence. State v. Long added to the existing legal history of discounting female voices by literally excluding them from the admissible discourse of their own deaths. 

The courts in the above four cases maintained that they were carrying out justice for the parties involved, but there is a clear gendered partiality to their approaches. Legal decisions set precedents that built on existing gendered prejudices and served to discredit women. Some states refused to include dying declarations because they believed these testimonies could not convict defendants in abortion cases like Seifert. Other cases, like State v. Keller, built on this idea, claiming that dying declarations required support from exterior third parties. The testimony of victimized women was not enough to support a conviction. Other states excluded dying declarations as they found cases of criminal abortion to be profoundly different from cases of homicide where dying declarations were admissible– even when abortion resulted in death. However, even in homicide cases, states still rejected the evidence provided by women on their deathbeds. In the case of State v. Long, Long’s dying declaration was ruled inadmissible because the Court believed that, on her deathbed, she misrepresented her experience to protect her pride and reputation. 

In the Progressive Era, women were not able to escape their gender– even in death. In Seifert v. State, State v. Keller, and Winfrey v. State, the Courts acquitted physicians convicted of conducting criminal abortions because female dying declarations were excluded from evidence. In State v. Long, Harry Long’s murder conviction was overturned because his wife’s dying declaration was judged inadmissible. In all four of these cases, female experiences were invalidated. Unfortunately, these historical examples of misogyny and unfair treatment in the justice system remain relevant to contemporary approaches to public health policy. The recent decision in Dobbs and the accompanying overturn of Roe v. Wade (1973) points to the modern significance of gender identity in the right to bodily autonomy. 

America has moved past Progressive Era conceptions of gender but has not completely dispensed with the notion that men should be the final authority in female reproductive decisions. Six months after Dobbs ruled that abortion is not a protected right under the Constitution, 24 states have already banned abortion or have indicated an intention to restrict abortion access. If the legal record tells us anything, it is that the criminalization of abortion disproportionately targets women and fails to punish men for their actions. 

Moving forward, it will be essential to create legislation that protects women and their rights to healthcare. We cannot assume that existing laws will be applied without gender discrimination. Instead, we must pass legislation that will explicitly protect women and define their rights. While the justice system’s failures in the Progressive Era cannot be changed, history allows us to evaluate how we can change our approach to public health policy going forward. 

Greta Filor is a senior at Brown University double concentrating in Economics and History. She is a staff writer for the Brown Undergraduate Law Review and can be reached at greta_filor@brown.edu