By Patricia Cline Cohen / Special To The Washington Post
Friday’s Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization relies on history to rescind the constitutional right to a legal abortion established by Roe v. Wade in 1973. There’s just one problem: The history it relies on is not correct.
Writing for the majority in Dobbs, Justice Samuel Alito Jr. argues that Roe disrupted “an unbroken tradition of prohibiting abortion on pain of criminal punishment” that had “persisted from the earliest days of the common law until 1973.” But the real picture is far blurrier; and even once states began passing stricter abortion laws between the 1820s and 1880s, public sentiment did not follow. Few abortion providers were convicted under the new laws, indicating that most Americans didn’t see abortion as a crime.
The ‘quickening’ standard: Anglo-American common law initially guided the U.S. on abortion. Under common law, abortion was only punishable after “quickening,” defined as the moment the mother first felt fetal movement; typically between 16 to 22 weeks of gestation.
Alito contends, however, that pre-quickened abortions were always strongly condemned, as shown by the wave of statutes that states passed in the 19th century criminalizing abortion for the entire pregnancy. Yet, over a third of the states actually retained the imprint of quickening in these laws, assigning a distinctly lesser penalty for abortions that took place before quickening.
Even more importantly, there is scant evidence of public concern about fetal “personhood” or moral opprobrium prompting those new state laws in the 19th century, as Alito claims in Dobbs. In fact, there appears to have been no public pressure at all for tougher laws before 1845. All the statutes passed before 1845 were added during routine revisions of state criminal codes, probably meaning that most were enacted without actual debate.
Sensational coverage: But then something changed. The number of abortion statutes that states passed shot up between 1845 and the 1860s; and this pattern closely tracked with a sudden groundswell of newspaper reports about young women dead from bungled abortions. A sharp turn in journalistic practices in the 1840s sent reporters chasing crime and sex stories. Abortion was in the news as never before. A collection of 225 newspaper reports about abortion in nationally distributed news articles from 1820 to 1860 shows a trickle of stories up to 1845, followed by a dramatic acceleration thereafter.
These highly publicized incidents usually involved the death of an unmarried woman, viewed sympathetically. The newspapers portrayed such women as innocent victims of seduction, desperate to “hide their shame” of illicit premarital sex. Inquest testimony disclosed pathways for abortions: willing doctors, exact addresses, the existence of convalescent boardinghouses and those selling abortion-inducing drugs.
Strikingly, these news accounts and inquest records displayed no attention to the fetus beyond establishing gestational age, which in nearly all cases was past quickening.
Tougher laws, but few arrests: Alito assumes the toughened state laws in the 19th century reflected a strong public disapproval of early-term abortion, and if that were true, we should find a rising number of arrests for early-term abortions. But there are just a handful in the entire set of 225 cases. In two notable examples, a district attorney brought felony charges for abortions after quickening, but the juries came back with pre-quickening misdemeanor convictions. Here, the law’s two-part structure actually worked to get defendants lighter sentences.
Even as more abortions came to light in the press, most still never made it past the grand jury. For example, in New York City, only 10 cases came to trial in the 1840s. Nationwide, juries in abortion trials often failed to convict. Credible witnesses were scarce and dying declarations were often inadmissible. For the guilty, sentences were months, not years.
Abortion law in Massachusetts followed these patterns. Boston had a burst of three court trials in 1844 that received heavy press coverage, and one was a first for that city’s newspapers: the arrest of a midwife who successfully terminated the very early pregnancies of three married women. The district attorney allowed that the women were respectable, but he disapproved of their stated motive: “these ladies … had children faster than they desired to.” The midwife was acquitted in the state Supreme Court because Massachusetts still followed the common law then, which permitted abortions before quickening. The state legislature quickly moved to change that, and heavily penalized all abortions going forward. Under the new law, 34 cases were tried over the next 12 years. But not a single one resulted in a conviction.
Even as states clamped down on abortion, public sentiment failed to keep up.
More punitive laws — some mandating sentences of 10 or 20 years — rolled out in the 1860s and 1870s. These resulted from the work of a group of white male doctors in Boston who were convinced that “among the married the crime [of abortion] seems even more common than among those who have the excuse of shame.” They began a concerted drive to stop the practice. Their opening report garnered skepticism, with one critic concluding, these doctors “will fail to convince the public that abortion in the early months is a crime, and a large proportion of the medical profession will tacitly support the popular view of the subject.”
Fear of immigrants: Undeterred, the group’s leader pulled together a report of “frightful statistics” showing that Massachusetts’s increase in population was due solely to immigrants. The native-born population was actually decreasing, the report claimed, which was attributed to married white women having abortions. Pages dense with flawed calculations claimed the abortion rate in Boston was 13 times as great as in New York City, the reputed abortion capital of the country.
Via savvy lobbying, the Boston doctors’ flawed calculations landed with every legislature in the country. Their arguments persuaded the newly formed American Medical Association, a group also primarily composed of white male doctors with similar concerns, to endorse abortion bans. This advocacy drove most states that had not yet enacted new abortion statutes to do so in the 1860s and 1870s; laws that criminalized abortion before quickening.
An imagined past: But a small, elite group of wWhite male doctors leading the charge to criminalize abortion is hardly evidence of widespread support for making abortion illegal. And there is little evidence that criminalizing abortion made a dent in its actual practice. Yet, this is exactly what the Dobbs opinion asserts in seeking to align today’s legal framework with an imagined past that Roe allegedly disrupted.
Before states began criminalizing abortion in the 19th century, and even after, respectable doctors and midwives performed abortions, with the practice usually only visible to the public when a patient died. Juries were tolerant, penalties were low and successful patients — whether hiding shame or spacing pregnancies — availed themselves of these procedures.
None of this supports the idea of an unbroken tradition of preventing abortion and morally condemning it. If anything, history undermines that notion, and only distorting or misunderstanding the historical record allows for such a claim.
Patricia Cline Cohen is professor of history, emerita, at University of California, Santa Barbara.