Abortion and the 19th Century

On page 23, Supreme Court Justice Samuel Alito writes, “In this country during the 19th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy.” Here, Justice Alito’s words are thoroughly misleading.

In the 19th Century, abortion was criminalized for a wide variety of reasons, but fetal rights was not chief among them. In fact, the very first legal statutes regulating abortion were intended to protect the mother, not the fetus. During this period, abortion had become highly commercialized, and abortifacent drugs, often purchased over the coutner, were the most common method of abortion. Because these drugs often carried high doses of toxic chemicals, laws were developed to regulate their toxicity, and prevent the mother from experiencing severe side effects. The first of these laws appeared in Connecticut in 1821, and similar statutes were put into effect in ten other states around the country between 1821 and 1841.1 These early forms of abortion restrictions did not punish women for inducing abortions before quickening, and were poison control measures just as much as they were direct abortion restrictions.2 Their primary goal was not to outlaw abortion, but rather, it was an effort to ensure the health of the women who sought them. In general, American society would remain extremely tolerant of abortion until many years later. The reasons for these first laws were deeply intertwined with the commercial nature of abortion, and were an attempt to regualte what could be sold, bought, and ingested to attempt an abotion.

Laws enacted in the later part of the 19th Century that more specifically targeted abortion as a practice were put in place for an entirely different set of reasons. The primary actors behind these laws were physicians, and one of, if not their single primary goal was to convince the state to designate physicians as the sole practitioners of medical procedures and processes. These physicians openly regarded non-medical abortion practitioners as their “foes” and publicly expressed jealousy of the payment these non-medical individuals received for abortion services.3 But by highlighting the dangers associated with commercialized abortion, and by marketing themselves as professionally able to prevent both the abuses and dangers of abortion, these physicians were eventually successful in obtaining increased control over medical practices in the United States.4 The abortion laws that enabled this shift mostly attempted to convert abortion from a domestic and commercial practice to an entirely medical one, controlled by the increasingly powerful sector of male physicians. Even as these laws did begin to gain traction across the country, they were weakly enforced.5

In addition to considering that the primary goal of these physicians was professional, it is important to note that an analysis of their reasoning and execution reveals that it was, at its core, sexist and classist. In addition to the use of derogatory language in reference to women, these male physicians rested their reasoning on the “moral responsibilities” of women, and saw abortion as a social problem that needed to be regulated largely because it was “a flagrant corruption of morality among women.” 6 Because the women most targeted by official enforcers of these laws were working class or unmarried, these laws, in practice, were an attempt to enforce sexual and behavioral codes on women who were seen as deviating from their moral responsibilities. The language used in these debates in the 19th Century can be directly categorized as anti-feminist, though similar language of morality is still used in current debates around abortion, as can be seen in various points of Judge Alito’s draft.

At the end of he 19th Century and the beginning of the 20th Cenury, abortion became an increasingly critical debate as immigration rates, coupled with anti-immigrant sentiments, rose in the United States.7 Justice Alito acknowledges this history in regard to sentiments against white Catholic immigrants,8 but does not acknowledge the role that abortion had as a eugenic practice. Particularly in the early 20th Century, abortion, along with other modes of reproductive control such as sterilizaiton and contraception, was used in attempts to preserve racial hierarchies between white Americans and the growing non-white immigrant population.9

In an effort not to misrepresent this history, it is important to mention that there were discussions of fetal life involved in these efforts.10 But these concerns did not depict the fetus as having rights, and would not have been brought forth if other concerns, particularly around the morality of women and the authority of physicians, had not been prioritized.

In a portion of his draft, Judge Alito characterizes Roe v. Wade as an elaborate “scheme” performed by the justices who decided the case.11 But based on the history of the 19th Century and the emergence of anti-abortion laws, it seems as though this history, perhaps more easily than the direct history that led to the passage of Roe, could be considered an elaborate (though thinly-veiled) “scheme” itself. This scheme would increase physician authority in American society, reinforce women’s social roles as moral objects to be socially and behaviorally controlled by various male social actors, and preserve whiteness as a marker of American exceptionalism. Even if, as Alito states in the draft, it is the court’s decision to not consider the reasons for which these 19th Century laws were established, it is still significant that the Court has decided to return to laws that clearly, never would have been established if there existed any sense of racial, gender, or economic equality.


Endnotes

1. Mohr, James C. Abortion in America, 20. New York: Oxford University Press, 1978.

2. Ibid, 26.

3. Ibid, 161.

4. Ibid, 160.

5. Freidenfelds, Lara. Essay. In The Myth of the Perfect Pregnancy: A History of Miscarriage in America , 139–41 New York, NY: Oxford University Press, 2020.

6. Mohr, supra notes 2-5 at 216.

7. Ibid, 180.

8. Dobbs v. Jackson Women’s Health Organization, 28, N.A., U.S. (2022).

9. Ladd-Taylor, Molly. Essay. In Fixing the Poor: Eugenic Sterilization and Child Welfare in the Twentieth Century, 211–26. Johns Hopkins University Press, 2020.

10. Mohr, supra notes 2-5, 6 at 156.

11. Supra note 8 at 42-43.