In the public debate about abortion? This afternoon I attended the inaugural meeting of the American Constitution Society at the University of Wisconsin Law School. Professor Jane Larson discussed the history of abortion regulation in the United States. Professor Larson has written two amicus briefs to the United States Supreme Court on this topic. What follows are notes taken during the meeting.
Professor Larson referred to a brief that was signed by more than 400 historians across the U.S. The drafters of the brief were attempting to craft a ?consensus view of American historians” on the history of abortion. They felt that the facts were in their favor.
The big question for Professor Larson was, “Why was Roe v. Wade ever necessary?” In the 19th century, abortion was legal in the U.S. and was practiced openly. The story of how abortion came to be criminalized is fascinating.
In colonial America, abortion was legal prior to ?quickening? ? the point in time when a woman could feel the movement of the fetus. In fact, early American cookbooks often contained recipes for herbal abortion potions (we would call them “poisons”). Despite the legality of abortion, it was not an event that most people proclaimed publicly because it usually was viewed as evidence of extramarital sexual activity, which was strictly taboo.
What changed in the U.S. in the 19th century? In the late 1800s, of course, many things changed. We had the War Between the States, waves of immigrants from southern Europe, and the Industrial Revolution. During this time, the birth rate among white Protestant women declined dramatically because women were increasingly moving into the workplace. We can safely assume that people were not having less sex; abortion undoubtedly was one of the main reasons for the decline.
The first abortion regulation in the U.S. was an anti-poisoning law designed to protect women. (I didn’t catch the year, unfortunately.) Intrusion methods only became popular after disinfection was widely practiced. This corresponds to the professionalizatoin of the medical profession, and the division of health care providers into “regular” and “irregular” doctors. The latter group included midwives, who had traditionally provided a substantial amount of care to pregnant women. The intial moves to criminalize abortion were made by regular doctors, who wanted to cut out competition from ?irregular? doctors. That is, the regular doctors asserted their authority over reproduction in the name of science.
In the public debates, regular doctors relied on discriminatory ideas about women, like the need to control women?s sexuality. Women were seeking the right to vote, increased education, and the freedom to enter the workplace and professions. Men sensed that they were losing control over women, and the regular doctors decided to reassert control. (Professor Larson read some snippets from the public debates of the time to support this notion.)
The debate over abortion paralleled efforts to control sex. A common image employed in the public debates was the young woman who was seduced and then abandoned. It was thought that easy access to abortion would make women less cautious.
Finally, the abortion debate related importantly to immigration from southern Europe and the freeing of the slaves. The reduced birth rate of ?true Americans? (white Protestants) compared to the birth rates of Catholics and blacks was threatening. The criminalization of abortion would have the effect of increasing the birth rate of white babies that could be placed in Protestant homes.
Interestingly, the primary target of abortion laws was not the aborting woman, but rather the person who performed the abortion. The public rationale was a form of diminished capacity argument (the women were not capable of making a reasoned decision), but the ?real? reason was that anti-abortionists could not win by turning the women into criminals. No moral capacity to choose abortion = no moral responsibility for abortion.
Bottom line: the laws against abortion were not motivated primarily by concern for the life of the unborn or a deeply felt religious conviction, but rather by the desire of regular doctors to squeeze out competition, and the sexist and racist ideas of late 19th century power brokers (i.e., white males).
Back to Gordon: This is not a subject on which I have invested a lot of time, so I can’t vouch for the history. Many of the events seem plausible, though a lot of interpretation is going on here. But my main question for the group is this: does any of this history, if accurately conveyed, influence our thinking about the present abortion debate?
UPDATE: Lest there be any confusion, you can read my thoughts on the American Constitution Society here.