True and False Abortion History

It’s not true that abortion was unregulated in America before 1821

Much wailing and gnashing of teeth followed the Arizona Supreme Court’s recent upholding of the state’s 1864 abortion act. The wailers’ false narrative asks: How can we be governed by a 160-year-old law?

If  you listen to abortionists, they will try to spin a fake history of abortion law, originally sold by Cyril Means and quoted extensively by Harry Blackmun in Roe v. Wade. Problem is, it’s not based in facts.

Means would have you believe that abortion was unregulated in America until 1821, and that it was only then that the last gasps of Puritanism in Connecticut enacted America’s first abortion restrictions. Those restrictions came about, they claim, because of worries that women were exposed to lethal dangers at the hands of “back-alley abortionists.” Modern antiseptics and antibiotics eliminated those concerns and led to the mid-20th century’s relaxing of abortion laws, culminating in Roe v. Wade. In this fictional history, Dobbs represents the radical reversal of a trajectory that was moving in one direction until three little Trumpies joined Bush nominees and Uncle Clarence Tom to “turn back the clock” to the “Dark Ages.”

Where to begin debunking this?

Even the most cursory survey of medieval and English common law shows that causing injury to a fetus was punishable. Why wasn’t it always punished the same way as post-natal murder? Two reasons: (1) people didn’t understand female reproductive physiology and function, and (2) the demands of evidence of a crime.

Female reproduction is largely an internal body affair. How it worked was not, in fact, fully understood until the mid-19th century. Why? Because the first use of anesthesia occurred in 1846 and, prior to anesthesia, observing internal bodily function on a living human being was simply not possible (except, perhaps, for sadists and torturers).

Ultrasound did not appear until the 1980s. Before that, there was no other way to observe prenatal gestational development except, perhaps, primarily from the results of miscarriage at different stages of pregnancy. We have forgotten just how revolutionary, ground-breaking, and eye-opening was Lennart Nilsson’s 1965 photo essay in Life magazine, “Life before Birth” [about which, see here].

You could not “X-ray” fetal development because X-rays could be damaging to the unborn child. So, for much of human history, matters related to pregnancy depended on external markers, e.g., the last period, changes in the woman’s body, and when she felt the baby move. That last step was called “quickening” and, because it was a clear and verifiable moment, it became important to medieval and English common law in terms of abortion: Causing the death of an unborn child post-quickening incurred greater penalties because the palpable experience and evidence of life — movement — was there. Remember, too, that with embryology not even in its infancy, the speculative-but-hardly-scientific “embryology” of Aristotle filled in the gaps.

It is clear from medieval and English law that abortion — especially post-quickening abortion — was not legal. But convicting someone of a crime requires proving the crime was committed. Covering up an abortion was not too difficult, especially if that was something that mother and father both wanted. If the woman was not hurt, one would have to prove she was pregnant, a difficult thing to do, especially if the mother and father chose not to admit anything. Prosecution was likely only when the mother was also injured or even killed, for the simple reason that making an adult body disappear is relatively hard, especially in the small communities that characterized colonial America.

The challenges of these early cases are discussed in a fascinating book by Olasky and Savas, The Story of Abortion in America: A Street-Level History [here]. It’s an engaging account, from a pro-life perspective, of how abortion was practiced in America from colonial days. In these days of rampant disinformation about pro-life history, it should be on every Catholic’s bookshelf. [A review of it can be found here.]

Olasky and Savas document records of cases on abortion in colonial Maryland in 1652. There may have even been a case in Virginia as early as 1629, but that colony’s judicial records went up in smoke with the evacuation of Richmond during the Civil War. What would become the New York City Council prescribed an oath forbidding midwives to assist in abortions back in 1716. So, it’s absolutely not true that abortion was unregulated in America before 1821.

As to Arizona’s “archaic” 1864 law, I would send readers to a far-too-neglected masterpiece of legal reasoning: then-Justice William Rehnquist’s dissent in Roe v. Wade. Roe was decided in 1973 by a 7-2 vote; Justices Byron White and Rehnquist dissented. White’s dissent is much better known for its memorable phrase that the ruling was “an exercise of raw judicial power.”

Rehnquist’s dissent, less quoted, is a masterpiece of historical research. Although the Supreme Court in Roe could not decide for sure just where in the Constitution the “right to abortion” was to be found, one of the preferred candidates was the 14th Amendment and its “due process” clause. That amendment was ratified in 1868, when most states had enacted laws protecting the unborn against abortion. Twenty-eight states were required to ratify the 14th Amendment; as Rehnquist shows, 36 states had anti-abortion laws on the books, a considerable number of them — including Arizona (then a territory) — in the 15 years before the 14th Amendment.

Why is that important? Well, if the 14th Amendment grounds the “right to abortion,” how is it that nobody — not in Congress, not in the 28+ state legislatures that ratified it — ever suggested the Amendment had anything to do with abortion, much less required it to be legal? Many of those states were also enacting pro-life laws in that era, so it’s not that the question was forgotten. The same Congress that passed the 14th Amendment even passed some abortion restrictions for the territories.

Truth is, starting in the 1850s, as medical science and awareness of female reproduction increased, American physicians led the effort not just to “protect women from back alley abortionists” but also to protect the unborn as living human beings. Go back and read the press of the times. It is not an “either/or” proposition.

So, Arizona’s abortion law — like laws in many other states dating from that time that were in force up until Roe v. Wade in 1973 — was adopted out of scientific convictions about the humanity of the preborn child and not just public health issues connected with women.

There was a legal trajectory, just not the one abortionists imagine. In the mid-1960s, some states began legalizing abortion. The apogee of that movement was in 1970, with New York’s law allowing abortion through 24 weeks (6 months). Thereafter, from 1970-73, the process began stalling. We should not forget that even New York repealed its statute in 1972, only to be frustrated by Nelson Rockefeller’s veto, and that in November 1972 — just three months before Roe — voters in Michigan and North Dakota both rejected legalization of abortion by popular referenda. If anything was an outlier to American abortion policy, it was Roe’s practical legalization of abortion-on-demand through birth.

Roe was in force for almost half a century. Many Americans never knew a time when prenatal life was protected or abortion restricted in any substantial way. Repairing the cultural damage wrought by Roe will take time, but it can be done. The first place to begin is setting the historical record straight.

 

John M. Grondelski (Ph.D., Fordham) was former associate dean of the School of Theology, Seton Hall University, South Orange, New Jersey. All views expressed herein are exclusively his.

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