Roe vs. Wade: The Abortion Rights Controversy in American Historyby N. E. Hull, Peter Charles Hoffer
"Much more than a compact account of the Supreme Court's basic abortion decisions, Hull and Hoffer's work ranges widely to locate the constitutional and political controversies over abortion in the context of social movements and women's history. An astute and balanced guide to a much-debated subject."Mark V. Tushnet, author of Abortion: Constitutional Issues
"Hull and Hoffer move from big-picture issues to key case details without ever losing sight of the very human side of American law and politics. Their book is a wonderful resource for students of all ages looking for basic information and important insights into one of the truly landmark law cases in our nation's history."Sarah Weddington, author of A Question of Choice
Author Biography: N. E. H. Hull is Distinguished Professor of Law and a member of the graduate faculty in history at Rutgers University-Camden.
Peter Charls Hoffer is Research Professor of History at the University of Georgia. They are authors of twelve books between them.
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Abortion Becomes a Crime, 1800-1900
Why in the space of a single century from 1800 to 1900 did one of the most intimate and private acts, a woman's decision to abort a pregnancy, become the object of intense public scrutiny and calumny? How did conduct that had for millennia primarily involved women become in those same few years a major preoccupation of men? How did an event in which governments professed little interest become such a notorious offense against the state? These are the first quandaries the student of abortion law encounters in a subject whose history is filled with irony and contradiction. One cannot understand what Roe v. Wade meant to women or to men without understanding how abortion became illegal, and that story begins in the nineteenth century.
The laws that first made abortion a serious crime reflected profound changes in social and political relationships, in particular increasing complexity and tension in the associations between men and women; new sources of moral authority and new ways of expressing that authority; and a hitherto unprecedented degree of governmental intervention in private life. In an era of rising middle-class domesticity, growing professionalism of doctors and ministers, the popularization of science, and new kinds of state-imposed social controls on everyday life, abortion became a way of redrawing boundaries of deviance that extended into the confines of the bedroom and the doctor's office.
But the relevant history of abortion does not begin with its criminalization. Instead, one mustunderstand that before abortion became a crime it was one of the many choices that women made on the reproductive continuum from conception to birth. These choices were rooted in local custom and domestic mores and monitored not by the state but by ordinary women and men in the course of their lives, by families and communities, and by religious institutions. Indeed, although attempted and completed abortions were often secret acts, neighbors and family often knew about or suspected an abortion, and the community shared folk wisdom on how to procure an abortion and harbored abortionists. Women who were the victims of incest or rape, women who feared the exposure of an illegitimate child, women who could not take care of the children they already had, women whose mental and physical health would have suffered from continuing a pregnancy, and women whose lives were at stake often turned to family and neighbors for aid. "Cunning men" and women, folk healers and herbalists, and doctors might be summoned. Midwives sometimes doubled as abortionists. Other women were so desperate that they took matters into their own hands, using a wire to puncture their own uterine walls or ingesting combinations of noxious herbs or poisonous chemicals to force their organs into violent contractions. Thus before abortion became the object of law it was a subject of everyday life.
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When Abortion Was Legal
Definitions of abortion vary, but the common ground among them is that an abortion is the premature end of a pregnancy. Spontaneous abortions, often called miscarriages, occur naturally in over one-half of all pregnancies. Induced abortions, using herbal potions to induce a mother to expel the fetus, or mechanical means to remove the fetus, are as old as human society's records. In societies where exposure and other forms of infanticide were widely practiced, for example in ancient Egypt, Greece, and Rome, abortion was not a crime, but a common form of birth control. Upper classes practiced it to avoid unwanted childbearing. Lower classes used it to limit family size when one more child would so stretch family resources that existing family members were endangered.
According to the most recent study of abortifacients, Roman couples used the juice of the silphium plant, a giant fennel now extinct, to induce abortions. Apparently it worked (silphium contains ferula, which prevents pregnancies in test mice). Queen Anne's lace (wild carrot) was another ancient favorite, and is still used in folk remedies. The Greeks preferred pennyroyal, which contains pulegone, a natural abortifacient. Greek doctors sometimes helped administer the drug. Egyptian texts mentioned acacia gum, recognized today as a spermicide. In these societies, abortion was part of a wide spectrum of intimate activities rather than a uniquely amoral exception to accepted norms.
Abortion in the ancient and early modern worlds also was tied in a cleansing of the reproductive system-so closely tied that supposed abortifacients were commonly used by folk healers to restart the menstrual cycle when it had stalled. Such menstrual stimulants/abortifacients appeared in most lists of early modern herbal folk remedies. In English botanist John Goodyear's 1655 translation of one of these herbal handbooks, there were nine herbs that supposedly ejected dead fetuses, forty-nine others that expelled the embryo, eighteen that killed the fetus, and six more that (somewhat redundantly) "caused abortion." Some of these potions were taken alone, others in combination. Many of the herbs assumed to produce abortion, for example savon, were also used to bring on menstruation and so to improve the chances of conception. The same nurse who watched over the pregnant woman and helped birth the infant, might, on another occasion, "gather rew [rue], savine [savon] and the flowre of camphora, and calamint, and dill" to concoct and administer an abortifacient.
Well into the nineteenth century, English and American home remedy and medical manuals listed common abortifacients as ways of restoring the normal menstrual cycle, not because the euphemistic phrasing was necessary to avoid legal prosecution, but because abortion was simply one of the many ways in which women dealt with gynecological and obstetric matters. All the authors denied that they were promoting abortion, and warned women against violent exercise, blows to the belly, or jumping off high places, and then turned around and enumerated the pharmacopeia of herbal abortifacients. Iron and quinine administrations along with a small portion of black hellbore would cause violent bowel spasms and expel fetuses; doses of calomel and aloes would induce diarrhea; juniper extract, a staple of the folk abortionists' herbal garden, and snakeroot were well-known Native American remedies for menstrual crampsbut like hellbore, iron and quinine, calomel, and aloe, juniper and snakeroot were equally effective in causing abortions.
Advertisements for juniper and snakeroot in nineteenth-century newspapers extolled their ability to relax the female organs, though the advertisement warned that "it has frequently been successfully employed for the (generally unjustifiable act) of procuring abortion." After indexing, in detail, all of the folk cures for unwanted pregnancies, one manual writer deplored "the horrid depravity of human weakness" that would lead a woman to employ such means to abort a fetus, but surely readers caught the obverse, subliminal message as well. (A correspondent reported to the authors a patent-medicine advertisement reading, "Absolutely must not be taken by pregnant ladies, as it is sure to cause an abortion." The warning's purpose, betrayed by the "sure to" phrase, could not be mistaken.)
Some methods for the restoration of fertility (or the inducing of abortion) were mechanical. One manual recommended electrical shocks to the uterine area to accompany a pint or so of a solution of pennyroyal, taken every night before bedtime, to promote menstrual flow. Alternatively, one might "boil five large heads of hemp in a pint of water" and take these before bed to restart the menstrual cycle. Another mechanical method of "unblocking menses" was the use of douches, spraying vinegar or strong brine into the vaginal cavity. All three of these procedures would also cause an abortion.
The so-called water cure, a fad popular in the nineteenth century, urged women to sponge the vaginal cavity with cold water, as well as indulge in frequent cold water baths, to remedy sluggish reproductive systems. The same method would, as it happened, prevent conceptions, at least according to early-nineteenth-century medicine. One must bear in mind that until the middle of the nineteenth century, basic processes of human reproduction were poorly or wrongly understood. The motility of sperm, for example, was a mid-nineteenth-century finding. Thus one should not be surprised to see such "heroic" or extreme herbal and mechanical programs prescribed for obstetric healthor to prevent pregnancy.
The dual nature of so many of these medical administrations suggests that the authors knew well that their readers did not always see abortion as unthinkable or detestable. It was merely one of the many possible outcomes of sexual activity. As the writers of the manuals hinted and readers undoubtedly understood, such steps were left to the discretion of women, in private. Their reproductive bodies were their own.
As were the reasons women had for seeking to terminate a pregnancy. Undoubtedly women whose families were already so large that additional children could not be easily fed or clothed and women who did not want another child availed themselves of abortion. In addition, unwed mothers, to hide the shame and avoid punishment for the bastardy, might attempt abortion. Colonial law prosecuted unwed mothers with fines, whipping, and public shaming. Abortion would avoid these penalties and protect the reputation of the woman. There was in addition a psychological component of abortion for such young people. From the court records in infanticide cases historians have found evidence that poor, unmarried female defendants regarded the fetus as a foreign body, to be purged from their wombs. Often, the records reveal, such women had already tried and failed to abort the fetus.
For the same reasons that women tried to keep illegitimacy private, they kept abortions secret. Nevertheless, cases in the colonial judicial records demonstrate that neighbors knew about the pregnancy and its termination. Sometimes the pregnant woman called upon family members and friends, or networks of older women and midwives, for help. On occasion, the family would hire a "cunning man" or folk healer. Still, recorded cases were rare, for the pregnant woman was unlikely to complain about a procedure that she sought and willingly endured; nor were midwives, the presumptive accomplices in such a procedure, likely to report their complicity. Most midwives knew perfectly well how to abet an abortion but did not report such cases, even in private. For example, Martha Ballard, a midwife in Hallowell, Maine, at the end of the eighteenth century and a dozen years into the nineteenth, recorded her presence at hundreds of births and sickbeds over the course of a thirty-year career, and never mentioned abortion, although there must have been some abortions rumored in the neighborhood. She was a skilled herbalist herself and often administered folk herbal remedies, such as tansy, a well-known abortifacient. She drily noted that she favored it for "worms."
When reports of abortion did appear, they were usually part of a pattern of serious accusations. For example, in 1668, New Haven authorities heard testimony from midwives that Ruth Briggs had not aborted her illegitimate child, but the child had been born alive and then killed. Briggs was executed for infanticide. When the pregnant woman did not want the abortion or the abortion was botched, a case would come to court. Colonial Maryland authorities probed one case of unwanted sexual intercourse leading to an abortion in 1663. Rumors reached the magistrates that a Portuguese doctor named Jacob or John Lombrozo had forced his attentions on his maidservant, Elizabeth Wild. Alternating promises of marriage with violent exhibitions of his amour, he impregnated her, but when she conceived, he administered an abortifacient. Neighbors reported her complaints against him, but by the time that the magistrates began to inquire, the doctor and the maid were married. She recanted her earlier accusations, but the gossip continued until Lombrozo sued his neighbors for slander.
Botched abortions also led to prosecutions. One such case, from the northeastern Connecticut village of Pomfret, in 1742, caused a considerable stir, for it involved a man already well known and mistrusted by the authorities. John Hallowell, a self-taught "practitioner of physick," used both an abortifacient and a "manual operation" to rid nineteen-year-old Sarah Grosvenor of her "conseption." Over the next month, Sarah struggled valiantly against a "malignant fever," then she died. Despite his ill-repute, Hallowell escaped prosecution for five yearsthe same secrecy that had concealed the pregnancy veiled his contribution to Sarah's death. At last rumorthe same unofficial source of accusation that had brought Dr. Lombrozo to heelinduced the Connecticut magistrates to pursue Hallowell. Convicted and sentenced to twenty-nine lashes, he fled to Rhode Island, followed by a trail of suspected crimes and escapes. Rumors that a woman had sought or gained an abortion, or that a woman or man had performed oneleading to suits and countersuits for slanderwere far more common than prosecutions for abortion.
The Laws Against Abortion
When early modern English and colonial law took note of abortion, it was to protect the potential mother from the abortionist. She was the victim. Attempted or successful abortions that killed the mother were felonies. If an abortion killed a viable fetus, it was a serious misdemeanor. But how was the court to know that the violence done the woman was not either a common battery or an accident having nothing to do with the pregnancy, or that the administration of the abortifacient was not, on the one hand, an attempt to restart the menstrual cycle, or, on the other, an attempt to poison a woman who happened . to be pregnant? In such cases, the pregnancy itself had to be proven before the prosecution could frame a charge around the attempted abortion.
But proving that there was a fetus in the uterus and that the fetus was alive (or "quick") was not easy. In the first place, a woman who procured an abortion, whether it succeeded or not, was not likely to testify to her complicityit would reveal the very fact that she was trying to conceal. Abortion of a fetus in the earliest stages of pregnancy was the most easily concealed of crimes, for the victim (under the law the woman) conspired in her own victimization. Nor would the abortionist testify to his or her own crime. In the second place, the state of medical knowledge at the time made it difficult for the authorities to determine whether the pregnancy was terminated by the abortion or the injury to the woman caused by the actions of the alleged abortionist. The civil courts required proof of quickening, that is, that a live fetus existed.
The best evidence of quickening was the independent motion of the fetus in the womb. But this evidence was problematic for two reasons. First, the woman victim was the best and frequently the only source of this evidencethat is, of the precise time when such motion could be detected. Second, motion of this sort had religious implications that civil courts could not ignore.
Judeo-Christian teachings asserted that God implanted the soul when the infant was alive, and quickening was conventionally assumed to be the moment when such life began. In the Bible, a fine was levied on anyone performing an abortion, and an abortionist faced death if the woman died. Talmudic scholars decided that the harm had to befall the woman, not the fetus. The rabbis also concluded that there was no crime unless the fetus had quickened, but abortion was still permitted if the pregnancy endangered the mother's life. Some Jewish jurists went so far as to allow abortion if the pregnancy hurt the mother's reputation. Medieval European medical writings referred to the early fetus as a toad or a parasite, not as an unborn child, but the same writers saw abortion after quickening as a mortal sin, for from that time the fetus had a soul. Early Islamic medical writers like Avicenna discussed abortion in the context of birth control methods, but by the early modern period, the Roman Catholic Church frowned on contraception of all kinds.
Thus once again, the law conceded what local knowledge had long abetted: abortion of the fetus before quickening, on the assumption that the fetus was not "in life," that is, was alive but not human yet, was one of the many choices that women could make along that reproductive continuum. Comparing the law on abortion to that on infanticide illustrates how this early modern attitude toward abortion functioned. Neonaticidethe killing of a newbornmight in fact be a kind of delayed abortion (in which the mother denied the fact that she was pregnant and then through neglect or rejection of the infant allowed it to die), but the courts did not treat neonaticide with the same leniency as they did abortion precisely because the newborn was alive when it was killed or allowed to die. For example, a 1624 English law adopted in most of the colonies made concealment of the suspicious death of an infant "in life" presumptive evidence (that is, rebutable evidence) of murder, although the defendant who could prove she had delivered a stillborn child or the child had died from misadventure (accident) would escape conviction.
Even this harsh law was mitigated by juries' growing willingness to accept the defendant's testimony that the infant was not born alive and that the defendant had no intention of killing the infant. Almost all of the defendants in these infanticide cases were poor, unwed, young womenthe very targets of the 1624 law, for such women had (in the eyes of the law) the strongest motives for wanting to hide the shame of their illegitimate pregnancies. But in the eighteenth century, all the defendant had to do was prove that she had made some provision for the child, for example by laying aside swaddling, to persuade a jury that the concealment of the corpse (and the pregnancy) was motivated not by the desire to hide a crime but by the desire to hide the shame of bearing an illegitimate baby.
It may well have been the declining rate of convictions in neonaticide cases that led to the first English act outlawing all attempted abortions, at whatever stage of the pregnancy. The 1803 statute was the work of the chancellor of England, Lord Ellenborough. Although he was a traditionalist and a moralist, abortion was not the focus of the bill. Instead, he proposed to codify the already dizzying list of capital crimes, including picking pockets and stealing clothing worth more than one shilling, and close loopholes in the criminal law. In one of the sections of the law, abortion or attempted abortion upon a pregnant woman became an offense whose punishment was transportation to a penal colony. The death from abortion of a quick fetus was manslaughter. The provisions on abortion in the bill were poorly drafted. There was no mention of mechanical methods of abortion and nothing was doneperhaps nothing could have been done, to be fair to the lawto provide a sure guide in court that the victim of the abortion would otherwise have borne a live child.
One suspects that the new provisions on abortion had as much a hortatory and admonitory purpose as a prosecutorial one. The law declared abortion a crime against the state. The crown prosecutors knew that they would never be able to bring many cases of the new crime to light, except in the most egregious and tragic fact pattern: an attempted abortion that led to the death of the woman. Then the law, as revised, shifted the burden to the defendant to prove that the woman had not been pregnantevidence that few defendants could have provided. If the deceased had not thought she was pregnant, why would she have asked the defendant to assist in an abortion?
The English law making abortion after quickening a manslaughter did not immediately come to the United States. Quite the reverse was true. Here a reform movement led by luminaries such as Thomas Jefferson was busy codifying state laws to prune them of the brutality of the English criminal code. In many of the new state codes, punishment for petty larcenies, pilfering, and other crimes against property was reduced from the gallows to jail terms. But in the course of this general reform of the criminal laws on the books, state legislators encountered the same problem as had Lord Ellenboroughmultiplicity, redundancy, and confusion. In the course of clarifying and liberalizing criminal laws, states recognized that statutes on battery, poisoning, and murder overlapped abortion. Some attempt to define the latter was thus necessary, if only to bar prosecution when there was no evidence of quickening.
The first reported abortion casethus precedentunder this liberal American legal regime occurred in Massachusetts in 1812. The Supreme Judicial Court there dismissed a charge of attempted abortion against Isaiah Bangs because the prosecution could not prove that the woman was with child, in other words, that she had quickened. In one sense, then, the precedent was that the fetus was not a human being until quickening, a legal rule that conflated pre-1803 English precedent with established religious concepts of life, but in another sense the question was the vexing one that without proof of quickeningthat is, motion of the fetusone could not tell if the fetus was alive or had for some other reason died in the womb, or indeed, if the woman had been pregnant at all.
In 1821, Connecticut became the first state to explicitly criminalize abortion. The primary purpose of the law was to spell out the conditions under which the state could prosecute the abortionist for an abortion. The provisions appeared in the middle of an omnibus crime bill and penalized anyone giving poisons, "maliciously,' to a woman quick with child, intending to cause the miscarriage of the pregnancy. The law did not apply to attempted abortions or successful abortions before quickening, nor did the law make the woman, despite her complicity in some cases, an accessory to the crime. In fact, prosecutions occurred only when a woman died or suffered grievous harm through the abortionist's recklessness or negligence.
From 1828 to 1829, Missouri, Illinois, and New York legislators adopted statutes similar to Connecticut's, but with one major difference: the first two states did not mention the quickening doctrine. Judging from the handful of prosecutions, the reason for this change in law was not to treat the newly conceived embryo as a victim of the abortion, but to protect women who were hurt by attempted abortions early in the pregnancy. The law warned abortionists that they practiced at their peril whatever the stage of the pregnancy. Women were still not made liable for the crime, and without their testimony the number of cases remained small and the conviction rate minuscule.
Excerpted from Roe v. Wade by N. E. H. HULL AND PETER CHARLES HOFFER. Copyright © 2001 by University Press of Kansas. Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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