Opinion | What Alito Gets Wrong About the History of Abortion in America

“An unbroken tradition of prohibiting abortion under pain of criminal penalties persisted from the earliest days of the common law until 1973,” Alito asserts in the draft opinion.

The logic Alito uses in the draft opinion relies heavily on history – history that he is blatantly wrong about. Alito explicitly rejects the distinction between terminating a pregnancy before or after acceleration, a distinction that my research found was central to how American women and American physicians traditionally thought about pregnancy. In early America as in early modern England, pre-Quickening abortion was legal under common law and widely accepted in practice.

Early European settlers in the Americas, enslaved Africans, and Native Americans all had knowledge about menstrual regulation that women shared with each other, with their daughters, sisters, and neighbors. European Americans might also look for tips for dealing with “period suppression” in a published health manual. Sitting on a shelf in their own home could be a copy of the popular William Buchan Home medicinefirst published in 1774 and reissued several times until the middle of the 19th century, The companion of the married womanWhere The female medical repository, all of which included similar advice for restoring menstruation by bleeding, bathing, or solutions composed of quinine, black hellebore, or juniper. The latter was the easiest for Americans to obtain since juniper bushes grew wild. Some indigenous women used the roots of black cohosh and enslaved Africans used snakeroot, cottonseed root and okra. In the mid-18th century, street vendors in New England explicitly sold drugs to induce miscarriage. When these methods worked, the rules were “restored”.

Alito’s draft opinion dodges this well-established story. Instead, he insults 21st-century Americans by quoting the words of a 13th-century judge who endorsed human slavery and a 17th-century jurist who sentenced witches to execution and defended marital rape.

The first laws in the United States governing abortion, passed by states in the 1820s and 1830s, prohibited the provision of drugs – “poison” – intended to induce a miscarriage of a “woman, then fast with a child “. The first law of its kind in Connecticut was intended to punish men who seduced women and then, instead of marrying them when the pregnancy developed, forced them to use abortifacients. These early laws were essentially poison control measures intended to protect women both from violent men and from the sometimes deadly herbs and drugs marketed to induce their periods.

These early laws also only referred to incitement to miscarriage after acceleration. It is essential to recognize that these laws did not criminalize the drugs used before acceleration. The country’s first statutes assumed the existing common law right of women to regulate their menstruation – and to abort early pregnancies.

In his draft opinion, Alito chooses to ignore those early statutes, which preserved the accelerating distinction and numerous court opinions stating that it was not possible to sue for abortion when the woman was not ” fast with a child. He had this information at his disposal; these cases are easily found in the amicus brief submitted to the Supreme Court by two major professional associations of historians in the United States, representing the views of more than 10,000 scholars and teachers. Yet in his draft opinion, Alito instead relies on a single legal writer, whose work most scholars dismiss because it “distorts the evidence,” and he conveniently dismisses the importance of acceleration in a footnote.

Instead, Alito begins his version of the history of abortion laws with the 1860s and 1870s, when states began passing laws that eliminated the legal significance of acceleration and criminalized the termination of abortion. pregnancy at any time. This second wave of legislation was pushed by a small group of self-interested white male doctors who worried about their status as both doctors and elite American men.

The physician anti-abortion movement was led by a small group of highly educated white men who formed the American Medical Association in the 19th century. At the time, physicians did not enjoy the status and authority associated with the profession today. On the contrary, many mid-19th century Americans, especially middle-class mothers, criticized these doctors for their methods of treatment, which they considered “violent” and excessive. These doctors also resented their many competitors, including midwives, homeopaths and other popular “irregular” practitioners. Leaders of the anti-abortion movement have used the abortion issue to target these competing medical professionals. By obtaining these new statuses, Orthodox doctors are forging a new alliance with the State which elevates them above all other practitioners as well as women themselves. Importantly, the new laws included an exception allowing doctors to perform abortions for medical reasons (“therapeutic abortions”) – in other words, they kept abortion legal. when they performed the procedure. Alito jumps this loophole.

Equally important in motivating this movement of medical men was their hostility to women’s activism and the obvious tendency of middle-class married white women to limit the size of their families. Anti-abortion activists have denounced married white women who visit abortion providers’ offices, accusing them of favoring “fashion” and politics over motherhood. “The real wife,” wrote Dr. Horatio Storer, the medical leader of the anti-abortion movement, did not seek “undue power in public life . . . [or] privileges that are not his. This same Harvard doctor and his colleagues at the AMA also vigorously resisted the entry of women into the medical profession.

Doctors have also sounded the alarm over changing national demographics. According to Storer and his colleagues, the white class of native-born Yankees would soon be overpopulated by immigrants thanks to the abortion practices of middle-class white women. The “outsiders”, the Chinese, and especially the Catholics, Storer warned, would move to the West if women of his own class failed to produce larger families.

Yet Alito again dismisses the historical record, saying Storer’s hostility to immigrants and women was only the words of “a prominent opponent.” But Storer’s statements and actions were the underlying force that led to the passage of laws criminalizing abortions; state and local medical societies used her essays, data, memoirs, and letters to convince state legislatures and governors of the need to make abortion at all stages of pregnancy a crime. Storer’s anti-immigrant and racist views — an early version of the “replacement theory” — were a key driver of the anti-abortion movement that Alito claims is the true American tradition.

It’s important to understand that even though Storer’s views have become law, that doesn’t mean they have been widely adopted. Although speeding no longer matters under the new laws, my research found that the general public still believes it. In my book on the history of abortion, I quote Dr. Joseph Taber Johnson, an eminent physician who taught midwifery in Washington, DC, who wrote in 1895 that “Many otherwise good and exemplary women” thought that “before accelerating, it is no more difficult to evacuate the contents of their entrails than it is to that of their bladders or their intestines. Although physicians like Johnson did not endorse their patients’ abortion practices, the medical profession was deeply involved in providing abortions during this period, either performing the procedure themselves or directing their patients to someone else who did.

This fact, true throughout the century of criminalization of abortion, reveals that official pronouncements denouncing abortion made by medical leaders have obscured real and significant differences in thought and practice within the medical profession. Claims of moral superiority by medical leaders and their societies masked a reality in which abortion in early pregnancy was not only common but widely regarded as morally acceptable.

Over time, as the criminalization of abortion did not stop it, the police and prosecutors developed a system of enforcing the laws which consisted of interviewing women who had abortions, capturing them, as well as the provider and attendants, raiding abortion clinics and forcing them to testify in public courtrooms. Coercive gynecological examinations were sometimes part of police gathering evidence to prosecute abortion providers. Although we only know of a handful of cases where women who have had abortions have been prosecuted or imprisoned (there could be hundreds or thousands more who left no trace), women have been completely shamed and punished by these humiliating and invasive investigative methods. In the 1900s, boyfriends involved in abortions that resulted in the death of their “lover” were imprisoned for months and prosecuted.

The end result was that the criminalization of abortion drove it underground where safety regulation was virtually impossible and many women could find no one to help or could not afford it. Many have terminated their pregnancies on their own, using herbs, Clorox or turpentine or have turned to instruments, such as hooks, orange sticks, pencils or a chicken pen, which they have inserted into the cervix to cause miscarriage. A small number of white women continued to be able to obtain rare legal “therapeutic” abortions in hospitals, as were those who were fortunate enough to be part of a medical family. But most women, regardless of race, class and religion, had to go to underground providers, some of whom were excellent and safe while others were incompetent. Thousands of people went to hospital emergency rooms every year bleeding, injured and sometimes feverish and infected. Some of them died, about four times as many black and Latina women as white women. Cook County Hospital in Chicago had an entire ward dedicated to septic abortion cases. This service closed after 1973.

The United States has already experienced a century of criminalized abortion: the results of these 19th century laws cited by Alito produced a public health catastrophe that killed black, brown and low-income women in disproportionate numbers, increased the maternal mortality and injured millions of women. . If abortion is criminalized again in the 21st century, history tells us what we can expect, whether or not the Supreme Court chooses to take that history into consideration.

Leave a Comment