“An unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973,” Alito asserts in the draft opinion.
The logic that Alito uses in the draft opinion leans heavily on history — history that he gets egregiously wrong. Alito explicitly dismisses the distinction between ending a pregnancy before or after quickening, a distinction that my research has found was critical to the way American women and American physicians traditionally thought about pregnancy. In early America as in early modern England, abortion before “quickening” was legal under common law and widely accepted in practice.
Early European settlers of the Americas, enslaved Africans and Native Americans all had knowledge concerning menstrual regulation that women shared among themselves, with daughters, sisters and neighbors. European Americans could also look for guidance for treating “suppression of the menses” in a published health manual. Sitting on a shelf in their own homes might be a copy of the popular William Buchan’s Domestic Medicinefirst published in 1774 and republished many times into the mid-nineteenth century, The Married Lady’s Companiongold The Female Medical Repository, which all included similar advice for restoring menstruation through blood-letting, bathing or solutions composed of quinine, black hellebore, or juniper. The latter was the simplest for Americans to obtain since juniper bushes grew wild. Some indigenous women used the roots of black cohosh and enslaved Africans used snakeroot, cotton root and okra. By the mid-18th century, traveling salesmen in New England sold drugs explicitly to induce miscarriage. When these methods worked, the menses were “restored.”
Alito’s draft opinion sidesteps this well-established history. 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, banned the furnishing of drugs — “poison” — intended to induce a miscarriage of a “woman, then quick with child.” The first such law in Connecticut aimed to punish men who seduced women then, instead of marrying them when developed pregnancy, coerced them into using abortifacients. These first laws were essentially poison control measures intended to protect women from both abusive men and the sometimes-deadly herbs and medicines marketed to bring on their menses.
These first laws also referred only to inducing miscarriage after quickening. It is essential to recognize that these laws did not criminalize drugs used before quickening. The nation’s earliest laws assumed the existing common law right of women to regulate their menses — and to abort early pregnancies.
In his draft opinion, Alito chooses to ignore these early statutes, which preserved the quickening distinction and the many judicial opinions stating that cases could not be brought for abortion when the woman wasn’t “quick with child.” He had this information at his disposal; those 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 relies instead upon just one legal writer, whose work most scholars reject because it “distorts the evidence,” and he conveniently dismisses the significance of quickening in a footnote.
Instead, Alito begins his version of the history of abortion laws with the 1860s and 1870s, when states began to adopt laws that eliminated the legal significance of quickening and criminalized the ending of pregnancy at any stage. This second wave of laws was pushed by a small group of self-interested white, male physicians who were anxious about their status as both doctors and as elite American men.
The physicians’ anti-abortion movement was driven 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. Rather, many mid-19th-century Americans, especially middle-class mothers, criticized these doctors for their treatment methods, which they saw as “violent” and excessive. These doctors also resented their many competitors, including midwives, homeopaths and other popular “irregular” practitioners. The leaders of the anti-abortion movement used the abortion issue to target these competing medical professionals. In winning these new statutes, the orthodox doctors forged a new alliance with the state that elevated them over all of the 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 skips over this loophole.
As important for motivating this movement of medical men was their hostility to women’s activism and the evident tendency of married, middle-class white women to limit the size of their families. Anti-abortion activists denounced the married white women who visited the offices of abortion providers, accusing them of favoring “fashion” and politics over motherhood. “The true wife,” wrote Dr. Horatio Storer, the medical leader of the anti-abortion movement, did not seek “undue power in public life. . . [or] privileges not his own.” This same Harvard doctor and his AMA colleagues also vigorously resisted the entry of women into the medical profession.
The doctors also drummed up alarm over changing national demographics. The white, native-born Yankee class, Storer and his colleagues argued, would soon be out-populated by immigrants thanks to the abortion practices of middle-class white women. “Aliens,” Chinese, and most especially Catholics, Storer warned, would settle the West if the women of his own class failed to produce larger families.
Yet Alito again dismisses the historical record, saying that the hostility to immigrants and women expressed by Storer were merely the words of “one prominent opponent.” But Storer’s statements and actions were the underlying force that drove the passage of the laws that criminalized abortions; state and local medical societies used his essays, data, memorials and letters to convince state legislatures and governors of the necessity of making abortion at all stages of pregnancy a crime. Storer’s anti-immigrant and racist views — an early version of “replacement theory” — were a prime driver of the anti-abortion movement that Alito claims as the true American tradition.
It’s important to understand that even though Storer’s views became law, that didn’t mean they were widely embraced. Although quickening no longer mattered according to the new laws, my research revealed that the general public still believed it did. In my book on the history of abortion, I quote Dr. Joseph Taber Johnson, a prominent physician who taught obstetrics in Washington, DC, who wrote in 1895 that, “Many otherwise good and exemplary women” thought that “prior to quickening it is no more harm to cause the evacuation of the contents of their wombs than it is that of their bladders or their bowels.” Although medical men like Johnson didn’t approve of their patients’ abortion practices, the medical profession was deeply involved in providing abortions in this period, either performing the procedure themselves or giving their patients referrals to someone else who did.
That fact, true over the entire century of criminalized abortion, reveals that the official pronouncements denouncing abortion made by medical leaders obscured genuine and significant differences in thought and practice within the medical profession. The claims to moral superiority made by medical leaders and their societies masked a reality in which abortion in early pregnancy was not only commonplace but widely regarded as morally acceptable.
Over time, since criminalizing abortion did not stop it, police and prosecutors developed a system for enforcing the laws that centered on interrogating women who had abortions, capturing them, along with the provider and any assistants, during raids of abortion offices and forcing them to testify in public courtrooms. Coercive gynecological examinations were sometimes part of the police gathering of evidence to prosecute abortion providers. Although we only know of a handful of cases where women who had abortions were prosecuted or jailed (there could be hundreds or thousands more that left no record), women were thoroughly shamed and punished through these humiliating and invasive methods of investigation. In the 1900s, boyfriends involved in abortions that resulted in the death of their “sweetheart” were jailed for months and prosecuted.
The end result was that criminalizing abortion pushed it underground where regulating safety was virtually impossible and many women could not find anyone to help them or could not afford it. Many aborted their pregnancies themselves, using herbs, Clorox, or turpentine or turned to instruments, like crochet hooks, orange sticks, pencils, or a chicken feather, which they poked into the cervix to induce a miscarriage. A small number of white women continued to be able to obtain rare, legal “therapeutic” abortions in hospitals, as did those who had the good fortune to be part of a medical family. But most women, across race, class and religion, had to go to underground providers, some of whom were excellent and safe while others were inept. Thousands went to hospital emergency rooms every year bleeding, injured and sometimes feverish and infected. Some of them died, approximately four times as many Black and Latina women as white women. Chicago’s Cook County Hospital had an entire ward dedicated to septic abortion cases. That ward closed after 1973.
The United States has already experienced a century of criminalized abortion: The results of those 19th-century laws cited by Alito produced a public health disaster that killed Black, brown and low-income women in disproportionate numbers, raised maternal mortality and injured millions of women . If abortion is criminalized once 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.