The fight for abortion rights is a battle over history
This month, the world has learned that the Supreme Court of the United States intends to strike down Roe vs. Wade, the 1973 case protecting legal abortion in America. In a draft majority opinion leaked to PoliticoJudge Samuel Alito maintains that deer must be canceled in part because the Constitution does not mention abortion (true: the 55 delegates who drafted it did not mention the termination of pregnancy, nor any other specific medical act, nor the childbirth) and also because, unlike deer, Alito claims that abortion was not historically considered a right in the United States. “Until the end of the 20th century, such a right was completely unknown in American law,” writes Alito. It’s wrong. While the opinion is not definitive, the fact that this fundamentally flawed assertion even made it a draft is a disheartening sign that the Supreme Court needs a corrective history lesson.
“Abortion has not always been a crime. In the 18th and early 19th centuries, abortion of teenage pregnancies was legal under common law,” writes historian Leslie J. Reagan in her 1996 book. When abortion was a crime: women, medicine and law in the United States, 1867-1973. While abortion was effectively outlawed for a long period of American history, this criminalization took place nearly 80 years after the Constitution was written. A Reconstruction-era sharecropper’s wife would probably have struggled to find a way to have a legal abortion; a founding father’s mistress, meanwhile, could have one in early pregnancy without the threat of state punishment.
When abortion was a crime is an essential scholarship tracing the social movement to ban abortion and punish doctors, midwives and patients. Drawing on public records and archival research on how abortion laws were created, enforced, and circumvented in the Chicagoland area, Reagan documents how changing attitudes and beliefs about bodily autonomy and the beginning of life has had an impact on pregnant women and the healthcare workers who try to help them. While the majority of the book, as its title suggests, focuses on the century in which abortion was banned in the United States, it also offers a comprehensive summary of abortion customs and policies before it was banned. “Abortions were only illegal after ‘acceleration’, when a pregnant woman could feel the movements of the fetus (about the fourth month of pregnancy). The common law attitude toward pregnancy and abortion was based on an understanding of pregnancy and human development as a process rather than an absolute moment,” Reagan writes.
Then, as now, the vast majority of abortions occurred before “acceleration”, and thus the vast majority were legal, generally considered a matter of bringing on a period or “resetting the rules”. As Reagan points out, pharmacists routinely peddled brand-name abortifacients to their clients during this time, and “reestablishment of menstruation” was not a particularly controversial topic.
Right now, reading Reagan about life during abortion bans can feel like reading speculative fiction more than historical fact, as his chronicle of the past increasingly feels like a glimpse into the future. Like When abortion was a crime explains, the first American anti-abortion movement took off in the mid-1800s, leading to a cascade of laws banning abortions in the 1860s-1880s. Reagan describes how medical activist Horatio R. Storer fought against abortion using ideas of white supremacy, saying that aborting white babies would result in the white population of America being replaced by other races . “Hostility toward immigrants, Catholics, and people of color has fueled this campaign to criminalize abortion,” Regan writes. “White male patriotism demanded that motherhood be imposed on white Protestants.” Storer influenced much of the medical establishment with this argument. (His xenophobic tirades sound sadly familiar today – Storer was, in essence, a propagandist ahead of his time for the “Replacement theory” now embraced by the American right.) This era of Prohibition led by Storer did not stop abortions, but it made them more dangerous.
The American Historical Association and the Organization of American Historians submitted a amicus brief to the Supreme Court explaining this historical context in September. The memoir cites Reagan among dozens of other sources, as she is far from the only scholar to argue clearly and explicitly that abortion was not always a crime. 1978 book by historian James C. Mohr Abortion in America: the origins and development of national policy, 1800-1900 opens with the following lines: “In 1800, no jurisdiction in the United States had enacted any law whatever on the subject of abortion; most forms of abortion were not illegal, and American women who wished to have abortions did so.