Comment: At Constitution’s writing abortion was left to women

Those drafting the Constitution were largely content to have women quietly take care of the matter.

By Lara Freidenfelds / Special To The Washington Post

In his draft decision that would overturn Roe v. Wade, Justice Samuel Alito repeatedly emphasizes that the Constitution did not explicitly provide the right to abortion.

No, it did not. Nor did it provide for any other medical care specifically, much less intimate care related to sex and reproduction. But Alito makes a profound mistake in assuming that this means people did not regard fertility management as an elemental and presumed part of women’s familial and social roles.

At the time the Constitution was drafted, abortion was something women were supposed to take care of, away from the public sphere, as abortion had to do with sex, and with women’s “secret” and “shameful” parts. Most medical care was provided by the family matriarch, and abortions were often managed for women by women, in the home. Women were supposed to deal privately with the fact that they were vulnerable to rape and that their bodies bore the brunt of procreating the species. Everyone understood that a good wife would do what she could to preserve her health and long-term fertility, to “be fruitful and multiply”; including ending a pregnancy.

Women have long been given responsibility for procreation without official authority to manage it. Male theologians often considered abortion a sin, especially after “quickening,” the moment when the pregnant woman felt fetal movement and ensoulment was believed to take place. Abortion was connected to the general sense that women’s bodies were of Eve: fallen, sinful and shameful in and of themselves.

But physicians generally acknowledged the necessity of abortion for protecting women’s lives and fertility. Herbal medicines to restore the menses were part of married women’s self-care, used to enhance long-term fertility by spacing births. Explicit “abortifacients” were part of standard lists of pharmaceutical herbs because miscarriages happened all the time and could be deadly if incomplete.

Even as the practices were widespread, it is unclear how effective — or safe — herbal abortifacients were. The milder ones might have made a difference around the edges. Those that worked effectively early in pregnancy were essentially poisons, and a woman had to poison herself enough to convince her body to reject the pregnancy without accidentally killing herself. In later pregnancy, drugs that caused uterine contractions could cause abortion, but dosages were not standard and uterine ruptures have long been known to lead to death.

Before the 19th century, civil society regarded abortion as a private medical matter for married women, and a problem in need of occasional discipline when it was a sign of extramarital sex. Matrons recorded recipes for restoring menses in their household recipe books alongside instructions for making a variety of medicines and foods. Those recipes were typically shared among friends and neighbors. Beyond these private spaces, abortion was mentioned in a handful of court cases addressing fornication and the use of abortifacients to cover up sexual misdeeds, though these situations were much more likely to be prosecuted as crimes when they involved infanticide. This association with sexual sin gave abortion a sordid tinge in the public record, even as it existed in women’s everyday world as a part of regular medical care.

During the 19th century women increasingly left their handwritten recipe books behind and turned to the marketplace for more effective abortion care. Patent medicines, sold in fancy bottles with secret ingredients, promised to cure everything from worms to cancer to a missing menstrual period. Surgical abortion became common for the first time, with abortionists openly advertising their services in the backs of newspapers. Middle-class matrons increasingly turned to these more reliable (if still dangerous) means of spacing their pregnancies, as middle-class couples idealized small families and mothers who doted on and carefully raised just a few children.

And yet, though abortion was widely used as a crucial tool in respectable middle-class family building, its sordid connotations and intimations of sinful sex remained strong in the public imagination. Some states banned abortifacients as part of poison-control efforts, recognizing the dangers of powerful “quack” medicines with their unlisted ingredients. Later in the century state legislatures, at the urging of a newly prominent group of antiabortion activist doctors, increasingly targeted abortion providers.

While some providers were surely sketchy back-alley practitioners, others were established professionals. Madame Restell, for example, practiced openly in New York City from the late 1830s into the 1870s, making a great fortune, and had a wealthy and satisfied clientele.

But Restell did something controversial: She provided abortions in a public, commercial setting outside the private sphere, where married women’s abortion practices had long been protected by silence. Restell was arrested a number of times. Tabloids such as the National Police Gazette described the trials in lurid detail, quoting male doctors testifying about handling women’s “private parts” and observing their breasts and nipples for signs of pregnancy. Restell kept bouncing back from her arrests until 1878, when self-appointed anti-vice crusader Anthony Comstock entrapped her into selling him abortifacient pills, then called the police and had her arrested on obscenity charges.

Almost no one stood to defend Restell, though thousands had used her services. The threat of public exposure was too intense. One man who had been willing to put up bail withdrew the offer, citing the harm to his wife and daughters’ reputation, when the judge insisted that bondsmen’s names be published. By then an old woman, despairing of escaping jail one last time, Restell put on her diamond jewelry and slit her own throat in her bathtub. The tinge of sin and shame connecting abortion to fornication continued to stigmatize the practice, and ultimately destroyed a relied-upon abortion provider.

That’s why even as 20th century medical innovations had the potential to make abortion safer — from antiseptics to improved surgical techniques to blood transfusion and antibiotics — it generally remained a risky back-alley business for patients and practitioners alike.

By the 1960s, feminists were fed up and ready to take a stand. The contradictions in female sexual and reproductive roles were literally killing women. Women had the responsibility for managing fertility and raising children. And yet they had never gained moral authority to decide how to manage their own fertile bodies. They demonstrated and picketed for safe and legal abortions, and the 1973 Roe v. Wade decision allowed them to make that choice in consultation with their doctors, as a matter of their right to privacy.

The now half-century backlash to the Roe decision is a backlash against the most central and radical demand of the women’s movement: that individual women themselves be allowed full responsibility and authority over their sexual and procreative bodies, without shame, stigma or unnecessary risk.

When pressed, antiabortion politicians sometimes acknowledge that their laws are more likely to “make a statement” than to actually reduce abortions. The point is not to make abortions end; the point is to make them shameful and dangerous again.

If the concern were really with reducing the number of abortions and persuading women to keep pregnancies, antiabortion politicians and activists could join forces with the reproductive justice movement. This movement has gained visibility in recent years for its activism demanding for women the kind of responsibility, authority and resources (education, child care, good jobs, contraception, as well as abortion) that would support all parents to be pregnant when they want to be pregnant and not otherwise, to have the children they hope to have and to take care of them with dignity. Giving women what they need would be the most antiabortion choice. And upholding Roe would leave responsibility for pregnancy where it was at the time the Constitution was written: in women’s own hands.

Lara Freidenfelds is the author of “The Myth of the Perfect Pregnancy: A History of Miscarriage in America” and a regular contributor to Nursing Clio.

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