President Biden signed on Friday an executive order aimed at protecting access to abortion nationwide despite efforts by some states to outlaw or severely restrict it.
Council Member Marjorie Velasquez introduced legislation aiming to improve reproductive health care in the city. She has a personal appreciation for the issue now as Ms. Velasquez is starting her own family. The press release issued by her office states: “Following the Supreme Court’s opinion restricting reproductive care and accessibility, the Committee on Health and the Committee on Hospitals held a joint hearing to address the need for reproductive justice throughout New York City. I introduced legislation to make New York City a safe haven for families seeking care and advocated for a judicial protections for abortion providers. Our slate of legislation is a bold action to curb the maternal mortality rates and improve reproductive health care. As someone in the process of starting my family this is a very personal matter to me.” Was the issue of reproductive care a non-personal matter in previous times particularly in the 19 century which seems to be the golden age with regard to the criminalization of abortion? What does history tell us about 19th century?
In Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito wrote the decision overruling 50 years of constitutional protection of women’s right to get an abortion deploying arguments based on several historical precedents using the phrase “history and tradition” regularly.
“In 1803, the British Parliament made abortion a crime at all stages of pregnancy and authorized the imposition of severe punishment.”
“In this country during the 19th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy.”
By 1868, the year when the Fourteenth Amendment was ratified,” Justice Alito concludes, “three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime.”
Maurizio Valsania of the University of Torino writes that in Alito’s particular selection of historic facts, there is no reflection on what “historians consider a set of fundamental questions: Why was abortion eventually criminalized during that time? What was the broad cultural and intellectual context of that period? Is there something peculiar about the 19th century?”
Valsania’s essay underscores the transformation of the historical circumstances that impacted women’s self determination two centuries ago. Here is a summary of his presentation:
As far as women’s bodies and abortion are concerned, the 19th century saw a decrease in the trust in, and power of, women themselves.
17th- and 18th-century legal authorities Edward Coke, Matthew Hale and William Blackstone had all advocated for or condoned abortion. They fretted only when the procedure was carried out after ” quickening” the moment when the mother realizes that the fetus moves in her womb, approximately the fourth month of pregnancy.
As a medical procedure, abortion was widespread in Colonial and 18th-century America. By using more or less safe techniques, midwives and medical practitioners performed many types of operations on their patients. The woman could easily die, of course; but when she sought an abortion, no social, legal or religious force would have blocked her.
Also, a woman could choose from many available remedies rather than have an operation. Derived from juniper bushes, “savin,” or Juniperis Sabina, was one of the most popular abortifacients. Other herbs and concoctions were similarly taken: pennyroyal, tansy, ergot, Seneca snakeroot or cotton root bark.
The truth is that America’s founders, together with their contemporaries, had a rather democratic understanding of the female body. They believed that women, physiologically speaking, weren’t qualitatively different from men; the two sexes were equal and complementary.
Medical doctors argued that men’s and women’s composition was identical in essence – the only difference was anatomical.
Just like the male, the female was thought of as fully in control of the workings of her physiology, including her sexuality especially when it came to procreation. The 18th-century woman was active and in control.
And crucially, only she could detect whether quickening had taken place in her womb. Consequently, she could immediately tell whether terminating a pregnancy at a given time was acceptable. Or if it was a crime.
In the 19th century the understanding of physiology and the mechanisms of the female body underwent a deep transformation. European and American doctors, now, saw women as essentially different from men.
Women’s level of self-determination decreased accordingly. Suddenly, they were not only weaker or softer than men, but inherently passive, too. They were thus recast as pure, chaste and modest. Commendable women were virgins, wives, mothers. Or else they were prostitutes, nearly criminals, which reflects the Victorian dualistic mindset.
Anti-abortion campaigns began in earnest in the mid-19th century. They were waged mostly by the American Medical Association, founded in 1847, and were fundamentally anti feminist.
Anti-abortion campaigns were targeted against midwives and tried to discredit women’s firsthand experience of pregnancy. Male doctors claimed pregnancy as a medical terrain – a realm that belonged to them exclusively. Dr. Horatio R. Storer, the leader of the medical campaigns against abortion, described quickening as “a sensation.” In such a context, it could no longer be framed as the basis from where all moral, social and legal standards emerged.
In the Dobbs decision, Judge Alito says: “The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradition.” This is a historical fact: Protection of the right to abortion wasn’t around in America before Roe. The criminalization of abortion, the decentralization of the woman’s experience, plus the medicalization that led to that decision, are facets that belong to the long-gone 19th century. In order to find justification for the ruling, Judge Alito refers to two centuries ago without any reference to the 21th century we all live in. And when the US Constitution was ratified, women had much more autonomy over abortion decisions than during 19th century.